tm 


M5B2o 


0 
0 
0 


8 


-«:^IUBRARYQ^ 


\ii  i 


^mms/;^ 


<m3DNVS01^ 


^10SANCEI% 


%a3AiNnmv^ 


<^ME■UNIVER% 


<: 


i#      "^(^AMYHan-li^  ^J5l3DNV-S01=<^ 


^lOSANGEl^r* 

CO 
30 


•^AaaAiNnmv^ 


x^OFCAUFOR^ 


'^^AHvagn^' 


%       ^lOS;AKCU£r^ 
N2     ^ 


^HIBRARYO?. 


^lUBRARYQc^ 


.^WtUNIVERJ/A 

I 


<i^33NVS01=v? 


^lOSANCElfXA 


/jajAii^iiJUJ- 


■fo% 


^ 


^<?AavaaiHv*' 


^OFCAllFOft^ 


^^\\E•UNIVER%      ^ 


•^UHDmsoi^ 


..T!  110?)  A  nv/-, 


k.  ^TT! 


•Ti  VrJ !  a  ■'  "7  ri  w 


•  ic  Jiw^n.'rnc.rw  :.  i^jf  ui 


-5^1UBRARYQ^       ^ 


53     § 


>a..r.v,^^    %a3AiNni#     ^^ojnvDJO^    ^ 


0%     ^OF-C 


-'c/AavailU•iv^^ 


•soi^- 


.^10SANCEI% 


iVikVi-' 


^OFCAUFO;?^ 


if 


^1;^ 


n33 

so 


5>^IUBR 


O-jat-' 


^\WEUNIVER% 


^^DNVSOl^ 


eg- 

o 


IV 


r^j 


%    4- 
s   es 


FOi?^ 


va 


^^EUKIVER%.      ^ 


>- 


^ 


CQ 


«5WEllNIVERr,- 
c 


^^.lIBRARVn 


It    - 


*         <Sf 


'<» 


^f 


f/ 


yO. 


i 


OPINIONS  AND  DECREES 


IN    THE 


MEXICAN    CASES. 


UAI-TIMORE: MURPHY  8i  CO.,  PRINTKRS. 


.  • .       •  • 


'S 


CONTENTS. 


PAGE 


Opinion  of  Mr.  Chief  Justice  Taney,  in  the  Supreme  Court  of  tlie 

United  States.     December  Term,  1S54 5 

Decree  of  the  Court  of  Appeals  of  Maryland,  in  th^  case  of  Lyde 

Goodwin.     June  Term,  1849 17 

Opinion  of  Judge   Martin,  in  the  case  of  Lyde  Goodwin.     June 

Term,  1849 18 

Opinion  of  Chief  Judge  Dorsev,  and  Judge  Spence,  in  the  case 
\^^^  oi Lyde  Goodwin.     June  Tertn,  1849 19 

>.   Decree   of  the   Court   of  Appeals  of  Maryland,    in    the  cases  of 

'!;  James  Williams,  and  John  Gooding,  et  al.     June  Term,  1849.         20 

->    Opinion   of  Judge   Martin,   in   the  cases  of  John  Gooding,  and 

James  Hilliums.     June  Term,  1849 22 

?»■     Opinion  of  Chief  Judge  Dorsey,  and  Judge  Spence,  in  the  cases 

in 

^  of   John    Gooding,     and    James     Williams,    et    al.      June 

i  Term,    1849 22 

Opinion  of  Mr.  Justice  Grier,  in  ihc  Snprfirif  Court  of  the  United 

^  States,  in  the  case  of  Ly</e  Goot/u,z/<.     Dccnnber  Term,  1850.         24 

o 

■^     Opinion  of  Mr.  Justice  VVuDnBURY,  in  the  Supreme  Court  of  the 

O  United    States,    in    the  ca.-e   of   Lyde  Goodwin.     December 

ui  Term,  18;50 27 

□     Order  or  Decree  of  the  Supreme  Court  of  the  United  Stales,  in 

*  the  case  of  Lyde  Goodwin.     December  Term,  18.'50 29 

Opinion  of  Mr.  Justice  Nelson,  in  tlie  Supreme  Court  of  the 
United  States,  in  the  cases  of  James  Williams,  and  John 
Gooding.     December  Term,  18.51 30  &  35 

Orders  or  Decrees  of  the  Supreme  Court  of  the  United  Stales, 
in  the  cases  of  .James  Williams,  and  John  Gooding.  De- 
cember Term,  1851 34  &  35 

445^ 


PAGE 


Opinion  of  Mr.  Justice  Grier,  in  the  Supreme  Court  of  the  United 

States,  in  the  case  of  John  Deacon.     December  Term,  1852.         36 

Order  or  Decree  of  the  Supreme  Court  of  the  United  States,  in 

the  case  of  John  Deacon.     December  Term,  1852 38 

Decrees  of  the  Circuit  Court  of  the  United  States,  for  the  District 
of  Maryland,  in  the  cases  of  John  Deacon,  (1851,)  and  Lyde 
Goodwin,  James  Williams,  and  John  Gooding,  (1853) 39  &  40 

Opinion  of  Mr.  Justice  Nelson,  in  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Lyde  Goodwin.  December 
Term,   1854 41 

Order  or  Decree  oPthe  Supreme  Court  of  the  United   States,  in 

the  case  of  Lyde  Goodwin,  December  Term,  1854 45 

Opinion  of  Mr.  Justice  Nelson,  in  the  Supreme  Court  of  the 
United  States,  in  the  cases  of  James  Williams,  and  John 
Gooding,  December  Term,  1854 46  &  57 

Opinion  of  Mr.  Justice  Daniel,  in  the  Supreme  Court  of  (he 
United  States,  in  the  cases  of  James  Williams,  and  John 
Gooding,  December  Term,  1854 54 

Orders  or  Decrees  of  the  Supreme  Court  of  the  United  States, 
in  the  cases  of  Jaffze^  Williams,  and  John  Gooding.  Decem- 
ber Term,  1854 56&57 


©pinions  anh  Slccrccs  in  tl)e  iilejfican  ^ases. 


OPINION  OF  MR.  CHIEF  JUSTICE  TANF>Y. 


SUPREME  COURT  OF  THE  UNITED  STATES. 

December   Term,    1854.  « 


> 


John  S.  Williams,  Administrator  of 
James  Williams,  dec'd,  appellant, 
vs. 

Robert  M.  Gibbcs  and  Chas.  Oliver, 
Ex'orsof  Robert  Oliver,  deceased.  J 

And 

Jno.  Gooding,  junior,  Administrator 

de  bonis  non  of  John  Gooding, 

deceased,  appellant, 

vs. 

Robert  M.  Gibbes  and  Chas.  Oliver, 

Ex'ors  of  Robert  Oliver,  deceased. 


Mr.  Chief  Justice  TANEY  dissenting. 


Appeals  from  the  circuit  court 
of  the  United  States  for  the 
district  of  Maryland. 


> 


I  dissent  from  the  opinion  in  these  two  cases;  but  they  are  so  inli- 
niately  conncrled  with  ihe  case  against  liyde  Goodwin's  achninislraior, 
just  (l(!ci(led,  that  I  shall  be  better  understood  by  considering  the  three 
(oL'^eihor. 

W  lif'ii  the  case  of  Gill  (who  was  trustee  of  Goodwin  under  (he 
insolvent  laws  of  Maryland)  against  Oliver's  executors  was  biifore  lh<; 
court,  I  did  not  concur  in  llie  JudgnHiUt  then  given,  as  will  \)c  seen  by 
ihe  report  of  the  case  in  lllh  Howard's  Reports.  It  apjjeared  to  me 
(umecessary  at  ih.ii  lime  to  do  more  (ban  simply  ex])ress  my  dissent; 
but  iIm!  course  which  these  cases  have  siu((^  taken,  and  the  derisions 
now  given,  m.ike  it  my  duty  to  stale  more  fully  my  own  opinion,  and 
ihe  grounds  upon  which  I  passed  (he  decrees  thai  are  now  before  the 
court. 

'I'he  history  of  the  controversy  is  this:  (iondwin,  (Jooding,  and 
Williams  were  members  of  the  Haltimore  Mc-xican  C'omi)any,  which 
made  the  contract  with  Mina  in  1S1(>.  The  character  of  that  contract 
is  fully  stated  in  the  lllh  and  I2th  volmnes  of  Howard's  Reports,  and 
also  the  ui.uukt  in  which  it  came  bfforc  the  connnissionf-rs  uuder  the 
treaty  with  Mexico,  and  thfir  nw.ud  u])oii  ii. 


() 

The  commissioners  awarded  (he  sum  mentioned  in  their  award  to 
(he  Mexican  Company  of  Bahimore,  as  due  "  for  arms,  vessels,  muni- 
tions of  war,  goods,  and  money,  furnished  by  the  company  to  General 
Mina  for  the  service  of  Mexico  in  the  years  1816  and  1817,"  and  gave 
interest  to  the  company  according  to  the  stipulation  in  the  contract  with 
Mina.  I  have  given  the  words  of  the  award,  because  they  show  that 
the  commissioners  affirmed  (he  validity  of  this  contract,  and  directed 
the  amount  due  by  its  terms  to  be  paid  to  the  trustees  therein  named, 
for  the  benefit  of  the  parties  interested  in  it. 

l^roceeditjgs  were  soon  after  instituted  in  a  Maryland  court  of  equity 
against  the  (rustees  by  persons  claiming  an  interest  in  the  fund;  and 
the  money  by  order  of  (he  court  was  brought  into  court  to  be  dis- 
tributed among  the  parties  entitled.  Many  claimants  appeared,  pre- 
senting conflicting  claims  for  shares  in  the  company. 

Goodwin,  Gooding,  and  Williams  all  became  insolvent — Goodwin 
in  1817,  Gooding  and  Williams  in  1819;  and  their  respective  trustees 
appeared  in  the  Maryland  court,  and  claimed  the  amount  due  to  the 
insolvent. 

On  the  other  hand,  the  executors  of  Oliver  claimed  these  three 
shares — Goodwin's  under  an  assignment  made  to  Oliver  by  Goodwin 
in  1829,  and  the  other  two  under  assignments  made  to  him  in  1825 
by  George  Winchester,  who  was  tlie  trustee  of  each  of  them. 

The  controversies  which  arose  upon  the  distribution  of  this  fund  were 
removed  to  the  Maryland  court  of  appeals,  which  is  the  highest  court 
of  the  State.  And  in  the  trial  (here  it  was  objected  (hat  (he  con(ract 
with  Mina  was  in  violation  of  law,  and  therefore  fraudulent  and  void, 
and  vested  no  rights  in  the  members  of  (he  company  which  the  law 
would  recognise,  and  consecfuently  that  no  right  of  property  in  it  could 
vest  in  the  trustee  when  the  party  became  insolvent. 

It  may  be  proper  to  remark,  that  under  the  Maryland  insolvent  law, 
all  the  property,  rights  and  credits  belonging  to  the  insolvent  at  the  lime 
of  his  petition,  became  vested  in  his  trustee:  and  he  at  (he  same  time 
executes  a  deed  to  the  trustee,  conveying  and  assigning  to  him  all  his 
property,  rigli(s,  and  credi(s  of  every  tiescription  for  (he  benefit  of  his 
creditors.  And  if  the  persons  above  named,  at  the  times  of  their  peti- 
tions in  1817  and  1819,  had  any  interest  whatever,  either  legal  or 
equitable,  vested  or  contingent,  under  this  Mexican  contract,  it  passed 
to  his  trustee. 

The  court  of  appeals  decided  that  (he  contract  with  Mina  was  fraud- 
ulent and  void  under  our  neutrality  laws,  and  therefore  vested  no  rigiil 
in  the  parties  which  a  court  of  justice  in  this  country  could  recognise, 
and,  consequently,  that  they  liad  no  interest  or  property  under  it  which 
could  be  transferred  to  or  vest,  in  their  trustees  at  the  time  of  (heir  in- 
solvency. And  upon  this  ground  they  decided  against  the  claim  of  the 
trustees,  and  directed  the  whole  amount  of  the  three  shares  to  be  paid 
(o  Oliver's  executors. 

The  ground  upon  which  they  supported  the  claim  of  Oliver's  execu- 
tors to  these  shares  is  not  stated  fully  in  the  opinion.  It  was,  I  pre- 
sume, upon  the  ground  that,  by  the  terms  of  the  award,  the  shares  of 
these  three  persons  were  received  b}'  the  trustees  named  in  the  award, 


in  Irnst  for  these  executors;  and  flint  ihc  trustee?,  therefore,  had  no 
rio-ht  to  withhold  it  from  them;  as  neither  they  nor  their  testator  had 
any  participation  in  the  fraudulent  contract  out  of  which  it  had  arisen. 
And  if  the  court  was  riffht  in  decidinsr,  that  neither  the  trustee  of  the 
insolvent  nor  any  one  else  could  derive  a  title  to  this  money  under  the 
contract  with  Mina,  perhaps  the  lantruaoe  of  the  award,  together  with 
the  dociuuents  referred  to  in  it,  might  Justify  this  decision.  But  I  ex- 
press no  opinion  on  this  point,  and  merely  suggest  it  in  justice  to  the 
court  of  appeals,  in  order  to  show  that  their  opiiu'ons  in  these  cases  are 
not  necessarily  inconsistent  with  each  other,  although  the  court  may 
have  reasoned  erroneously,  and  decided  incorrectly. 

These  decisions  were  brought  to  thi«  court  by  the  trustees  of  the 
insolvents,  by  writs  of  error  imder  the  2.Tih  section  of  the  act  of  1789. 
Motions  were  made  in  each  of  them  to  dismiss  for  want  of  jurisdiction; 
and  the  motions  were  sustained  by  the  majority  of  the  court,  and  the 
cases  dismissed,  as  will  appear  in  the  reports  referred  to. 

[differed  in  opinion  from  the  court;  but  imdoul)tedly,  when  the 
cases  came  before  me  at  circuit,  upon  bills  filed  by  the  administrators, 
it  was  my  duty  to  conform  in  the  inferior  court  to  the  decision  of  the 
superior,  as  far  as  that  decision  applied  to  the  case  presented  by  these 
coniplainrmts.  It  is  true,  that  in  my  own  opinion,  and  according  to 
the  views  of  the  subject  I  had  always  entertained,  these  bills,  by  the 
administrators  of  the  insolvents,  could  not  be  maintained.  But  I  dis- 
missed them,  not  only  upon  that  ground,  but  also  under  the  impression 
that  1  was  bound  to  do  so  upon  the  principles  upon  which  this  court 
had  decided  them  in  the  suits  by  the  trustees.  It  appears,  however, 
by  the  opinion  just  delivered,  that  I  was  mistaken,  and  placed  an 
erroneous  construction  on  the  opinions  formerly  delivered.  It  seems, 
therefore,  to  be  due  to  myself  to  state  not  only  my  opinion  in  the  former 
cases,  but  also  the  interpretation  I  placed  upon  the  language  of  this 
court  in  deciding  them.  And  I  think  it  will  be  found  that  the  lan- 
guage of  the  foriuer  decisions  was  fairly  susceptible  of  the  construction  1 
[iiM  upon  it,  althouo-h  that  construction  has  turned  out  to  be  erroneous. 
1  do  not  mean  to  say  that  the  construction  which  the  majority  of  the 
court  puts  uj)on  its  former  decisions  now,  is  not  the  true  one;  but  that 
the  language  u^^fd  in  it  might  lead  I'vcn  a  careful  iiHiuiriT  to  a  ((Hitniry 
conclusjot). 

1  proc('(;(l,  in  liic  first  place,  to  speak  of  tlit;  case  of  (jJili,  trustee  of 
1  ,Vfle  (ioodwiu.  As  I  have  already  said,  when  that  case  was  before 
this  ((iiiii.  I  ihoutrli',  -111(1  siiil  think,  we  bad  jurisdiction;  and  proceed 
now  lo  slale  tin;  tnoiinds  of  that  o[)iniou,  and  how  it  bore  on  the  deci- 
sion of  the  suit  by  his  administrator,  which  is  now  before  u^ 

The  money  in  disfnite  was  claimed  under  the  contract  w  iib  Mina. 
And  ilie  aiiniiiiii  eJiMiied  was  awarded  to  (he  Mexican  Conij)auy  or 
liieii  |e<ra|  represeutati\cs  or  assigns,  by  (lie  commissioners  apj)oinle(l 
under  the  .Mexican  treaty,  and  the  act  of  (congress  passed  to  cany  it 
into  execuiif)n.  The  connui.ssioners  were  authorized  to  ascertain  and 
determine  upon  the  vjdidily  of  the  claims  of  American  cilizetjs  upon  the 
Mexican  uovei  nmeui,  and  for  which  this  L'overnmeiit  had  demanded 
lepaiaiidii.      ( )(  coiir-e    it    wa-'    their   dutv  rmt    ir»   allow   any  claim  for 


8 

services  rendered  to  Mexico,  or  money  advanced  for  its  use,  by  Ameri- 
can citizens  in  violation  of  their  duty  to  their  own  country  or  in  dis- 
obedience to  its  laws.  For  the  government  would  have  been  unmind- 
ful of  its  own  duty  to  the  United  States,  if  it  had  used  its  power  and 
influence  to  enforce  a  claim  of  that  description,  or  had  sanctioned  it  by 
treaty.  But  the  board  of  commissioners  were  necessarily  the  judges  of 
the  lawfulness  of  the  contracts,  and  the  validity  of  the  claims  presented. 
They  were  necessarily  to  determine  whether  they  were  of  the  descrip- 
tion provided  for  in  the  treaty  or  not.  They  may  have  conmiitted 
errors  of  judgment  in  this  respect,  and  may  have  connnitted  an  error 
of  judgment  in  sanctioning  the  contract  with  Mina.  But  the  law 
under  which  they  acted  made  them  the  exclusive  judges  on  the  sub- 
ject. There  was  no  appeal  from  their  decision.  And  if  there  was  no 
malpractice  on  the  part  of  the  commissioners,  and  (he  award  was  not 
obtained  by  fraud  and  misrepresentation,  it  was  final  and  conclusive. 
It  was  like  the  judgment  of  any  other  tribunal  having  jurisdiction  of 
the  subject  matter,  and  could  not  be  re-examined  and  impeached  for 
error  of  judgment  in  any  other  court  which  had  no  appellate  power 
over  it.  And  they  decided  that  the  contract  of  Mina  was  valid,  and 
consequently  it  vested  from  its  date  a  lawful  right  to  the  money  in  the 
members  of  the  Mexican  Company. 

The  objection,  therefore,  in  the  Maryland  court  brought  into  question 
the  validity  of  an  authority  exercised  under  the  United  States;  and  as 
the  decision  of  the  State  court  was  against  its  validity,  it  was  my  opinion 
that  a  writ  of  error  did  lie  under  the  25th  section  of  the  act  of  1789. 
And  regarding  the  award  as  final  and  conclusive  upon  other  tribunals, 
there  was  error  in  the  judgment  of  the  State  court  which  pronounced 
it  invalid  and  fraudulent.  It  will  be  observed  that  this  error  was  the 
foundation  of  the  judgment  of  the  State  court.  For  if  the  court  did 
not  look  behind  the  award,  and  had  regarded  the  contract  as  valid, 
the  right  to  Goodwin's  interest  undoubtedly  passed  to  his  trustee  in 
1817,  long  before  his  assignment  to  Oliver.  I  therefore  thought  this 
court  had  jurisdiction,  and  that  the  judgment  of  the  court  of  appeals 
ought  to  be  reversed,  and  this  money  paid  to  the  trustee  and  not  to 
Oliver's  executors. 

The  iTiajority  of  the  court,  however,  entertained  a  different  opinion, 
and  dismissed  the  cases  upon  tlie  ground,  as  I  understand  the  opinion, 
that  the  construction  of  the  treaty,  or  of  the  act  of  Congress,  or  the 
validity  of  the  authority  exercised  under  them,  did  not  appear  to  have 
been  drawn  into  question  in  the  court  of  aj)peals;  and  that  the  case 
appeared  to  liave  been  decided  upon  the  efiect  and  operation  of  their 
own  insolvent  law,  and  upon  their  own  laws  regulating  contracts  and 
transfers  of  property  and  credits  within  the  State,  over  which  we  had 
no  jurisdiction  upon  the  writ  of  error;  that  these  matters  were  exclu- 
sively for  the  decision  of  the  State  tribunals,  and  their  decision  final 
upon  the  subject. 

Some  remarks  are  made  in  the  opinion  in  relation  to  grounds  upon 
which  the  State  court  might  have  decided  without  impeaching  the 
award  of  the  commissioners;  and  among  others  the  fact  that  Goodwin 
had  assigned  his  right  to  Oliver  in  1829,  and  that  the  Mexican  Con- 


9 

gress  had  previously,  in  1S25,  ackno\vlecla;ed  its  validity.  There  is  an 
error  in  the  date,  but  it  is  ininiaterial.  The  acts  of  the  Mexican  Con- 
gress were  in  1S23  and  1S24. 

Hut  I  did  not  understand  these  remarks  as  intended  to  affirm  that 
the  share  of  Goodwin  passed  to  Oliver  by  this  assignment,  but  as  sug- 
gesting grounds  upon  which  the  State  court  miglit,  whether  erroneously 
or  not,  have  decided  in  favor  of  the  executors.  Because,  as  the  court 
held  that  it  iiad  no  jurisdiction  in  the  case,  I  supposed  that  it  intended 
to  give  no  opinion  upon  the  merits.  And  I  presumed  that  it  did  not 
intend  to  decide  that  the  acknowledgment  of  Mexico,  that  Mina's  con- 
tract was  binding  upon  the  republic,  could  give  any  validil}^  to  it  in 
the  courts  of  the  United  States.  F^or  the  contract  of  the  Baltimore 
Company  would  have  been  liable  to  the  same  objections  if  it  hatl  been 
made  originally  in  1816,  with  the  Mexican  government  instead  of  Gen- 
eral Mina.  And  if  it  was  void  in  1817,  and  Goodwin  then  had  no 
interest  imder  it,  it  was  equally  void  in  1829,  when  the  assignment  to 
Oliver  was  made;  and  it  is  due  to  the  court  of  apj^eals  to  say,  that  they 
have  not  indicated,  in  any  of  their  opinions,  that  the  acts  of  the  Mexi- 
can congress  had  any  influence  on  their  judgments. 
0  Uj)on  these  considerations  I  dismissed  the  bill  at  circuit,  upon  two 
grounds:  1st.  My  own  opinion  is,  that  ilie  interest  of  (loodwin  passed 
to  his  trustee,  and  consequently  that  the  present  complainant  (his  ad- 
ministrator) can  have  no  title.  2d.  This  court  decided,  upon  a  view 
of  the  whole  case,  that  it  had  no  appellate  power  over  this  judgment, 
and  that  it  had  been  decided  by  the  Maiyland  court  upon  its  own  con- 
struction of  its  own  laws.  And  that  point  being  adjudged  by  this 
court,  I  did  not  see  upon  what  ground  1  could,  in  conformity  to  this 
opinion,  revise  the  judgment  of  the  Slate  court  and  reverse  its  deci- 
sion. It  would,  in  substance,  have  been  the  exercise  of  an  appellate 
])0Wer  at  circuit  over  the  decisions  of  the  Stale  courts,  upon  their  o\\  n 
laws,  which  this  court  had  refused  to  exercise  on  writ  of  error;  and, 
for  the  reason  lirst  above  staled,  I  now  concur  in  aflirmini:  the  judg- 
ment here  in  the  case  of  Goodwin's  administrator. 

1  come  now  to  the  cases  of  the  administrators  of  Gooiling  and  Wil- 
liams, which  are  in  many  respects  alike.  'I'hese  wrils  were  also  dis- 
missed for  want  of  jurisdiction,  when  formerl)'  before  the  court;  and  in 
dismissing  ihem,  the  court  said  that  the  title  of  the  trustees  to  ihe 
shares  of  Gooding  and  Williams  "  involved  only  a  (piesiion  of  Slate 
law,  and  therefore  was  not  die  subject  of  revision  here,  and  was  con- 
clusive of  his  rights,  and  decisive  of  the  case."  I  (|uole  iIm;  language 
of  ihi;  couit.  The  want  of  jurisdiction  was,  therefore,  the  only  point 
decided  in  these  cases,  and  they  were  dismissed  on  that  ground. 

It  is  true  that  in  these  cases,  as  W(!ll  as  in  that  of  (Joodwin's  irustec, 
language  is  used,  in  the  opinion  of  the  court,  which  would  seem  to 
imply  lliat  the  court  was  of  ojiiuiou  that  the  contract  was  void  origi- 
nally, Ijut  li.id  afterwards  become  valid  by  the  events  referred  to  in  the 
ojjinion.  But  1  understood  liiesc  observations,  as  I  did  those,  made  in 
Goodwin's  case,  merely  as  suggesting  considerations  which  might  have 
led  to  the  decision  of  the  Stale  court  withoul  impeaching  the  award  of 
the  conunissioners,  but   not  as  approving  or  stuidioning  ih-in  ;is  sulli- 


10 

cient  Jiioiinds  for  (heir  decree.  For  llie  court,  determined  that  it  had 
no  jurisdiction,  and  consc(|uenlly  the  merits  of  the  case  were  not  before 
it,  and  I  presumed  it  did  nol  mean  to  express  any  opinion  concerning 
the  correctness  or  incorrectness  of  the  judgment  of  the  State  court. 
Such  I  have  understood  to  be  the  estabhshed  practice  of  this  court, 
and  I  was  not  aware  that  this  case  was  intended  to  be  an  exception. 
The  only  point  decided  was  the  conclusiveness  of  the  judgment  of  the 
State  court  upon  the  rights  of  the  trustees. 

The  court  of  appeals  assigned  two  reasons  for  their  decision,  and 
taking  them  literally,  as  they  stand,  they  are  inconsistent  with  each 
other.  But  the  opinion  appears  to  have  been  hastily  written,  and  not 
sufficiently  guarded  in  its  words;  and  it  is  evident  they  meant  to  say, 
that,  in  the  opinion  of  the  court,  no  interest  vested  in  the  trustee,  be- 
cause there  was  no  legal  or  equitable  interest  acquired  by  the  con- 
tract that  could  vest  anywhere,  or  in  any  person.  But,  if  there  was 
a  legal  interest,  it  passed  to  his  trustee,  and  by  his  assignment  vested  in 
Oliver.  This  mode  of  decision  upon  alternative  grounds  is  an  ordinary 
and  familar  one  in  courts  of  justice,  and  will  often  be  found  in  the 
decisions  of  this  court. 

And  however  the  reasoning  of  the  Slate  court  may  be  regarded,  it  is* 
dear,  that  with  the  interest  of  the  intestate  before  them  and  under  con- 
sideration, they  decreed  that  the  shares  belonged  to  Oliver's  executors. 
Now  it  is  perfectly  immaterial  whether  the  reasons  assigned  by  the 
court  were  right  or  wrong.  Here  is  their  judgment,  their  decree — a 
decree  founded  altogether  on  State  laws,  as  this  court  have  said  in 
their  former  decisions,  and  made  b}^  a  court  of  competent  jurisdiction. 
ITpon  what  principle,  tlien,  can  a  court  of  the  United  States,  either  at 
circuit  or  here,  undertaice  to  revise  it  or  reverse  it  for  error?  If  we 
had  no  appellate  power  upon  the  writ  of  error,  and  no  right  to  reverse 
the  jiKlgmenl  for  errors  supposed  to  be  committed  by  the  State  court 
in  interpreting  and  administering  its  own  laws,  how  can  this  coinl  or 
the  circuit  court  exercise  this  revising  power  over  the  judgment  in  the 
form  it  now  comes  before  us  ?  It  is  doing  in  another  way  what  it  is 
admitted  cannot  be  done  in  the  prescribed  mode  of  proceeding  by  writ 
of  error.  And  I  am  not  aware  of  any  precedent  for  this  exercise  of 
power  in  a  coint  of  the  United  States  administering  State  laws,  when 
the  judgment  of  the  highest  court  of  the  State  is  before  them  upon  the 
same  case   upon  which  the  United   States  court  is  called  on  to  decide. 

It  will  be  remembered  that  the  appellate  and  revising  power  of  the 
i-nuris  of  the  United  Slates  over  the  judgments  of  State  courts  stands 
upon  very  diM'erent  principles  from  those  which,  in  England,  govern 
the  relation  of  superior  and  inferior  Tribunals,  and  they  are  not,  there- 
fore, always  safe  guides  upon  the  revising  and  reversing  power  which 
the  courts  of  the  United  States  may  constitutionall}'^  exercise  over  the 
juilgments  of  Slate  courts. 

I  know  it  is  said  that  the  administrators  of  these  insolvents  who  have 
filed  these  bills  were  not  parties  to  the  former  proceedings,  and  are  not 
therefore  estopped  by  the  decree  of  the  court  of  appeals.  And  a  good 
deal  of  argument  has  been  offered  to  maintain  that  proposition;  but 
that  question  carmot  arise  until  other  questions  which  stand  before  it 


11 

and  control  it  are  first  disposed  of.  For  this  court  held,  upon  the 
former  writs  of  error,  that  tliese  cases  were  decided  b\'  the  court  of  ap- 
peals exclusively  upon  Maryland  law;  and,  if  that  be  the  case,  before 
we  come  to  the  question  of  parties,  other  questions  must  be  decided: 
1st.  Whether  in  this  form  of  proceeding  you  can  examine  into  the 
validity  of  the  groimds  upon  which  the  State  court  decided  them,  and 
reverse  its  judgment  if  you  suppose  it  committed  an  error  in  inter- 
preting and  administering  its  own  laws?  and,  if  you  are  authorized  to 
do  this,  then,  2dly.  Did  it  commit  an  error  in  deciding  that  those 
shares  belonged  to  Oliver's  executors?  The  reasons  they  may  have 
given  for  this  opinion  are  altogether  immaterial;  and  if  these  two  ques- 
tions are  decided  in  the  affirmative,  and  this  court  reverses  the  judg- 
ment, upon  the  ground  that  the  shares  belonged  to  the  insolvents  at  the 
times  of  their  death,  and  not  to  Oliver's  executors,  then  the  administra- 
tors would  undoubtedly  have  an  interest,  and  are  not  estopped  by  the 
former  decree  from  claiming  their  rights.  Nobody,  I  presume,  disputes 
this.  But,  before  you  come  to  this  part  of  the  case,  you  must  take 
jurisdiction  over  the  judgment  of  the  State  court,  and  reverse  it  for 
error.  Jiccause,  if  that  judgment  stands,  then  the  intestates  had  noth- 
ing at  (he  times  of  their  death  that  could  pass  to  the  administrators; 
and  there  would  have  been  no  more  propriety  in  making  them  parties, 
than  any  other  stranger  who  had  no  interest  in  the  fund.  The  admin- 
istrator of  a  vendor  who  has  in  his  lifetime  divested  himself  of  all  right 
to  property,  can  hardly  be  supposed  to  be  a  necessary  party  in  a  con- 
troversy between  purchasers  under  him  when  neither  of  the  claimants 
has  a  riijht  to  fall  back  for  indenmilv  on  his  estate.  The  administrators 
offer  no  new  evidence  of  interest  in  them  or  their  intestates,  but  present 
here  tlie  identical  case,  in  all  its  parts,  that  was  before  the  court  of 
appeals  when  it  j)assed  its  decree. 

Indeed  1  cannot  comprehend  how  the- State  court,  or  this  c(»inl,  ciin 
award  the  fund  to  the  administrators,  if  the  contract  was  fraudulent  and 
void  when  the  parties  became  insolvent.  They  both  died  before  the 
award  was  made;  hut  if,  up  to  that  tunc,  the  contract  continued  open 
to  examination  in  a  court  of  justice,  and  was  decided  to  have  been 
fraudulent  ami  a  nullity  when  n)ade,  nothing  afterwards  could  have 
given  it  legal  existence.  Nihilum  ex  iiiliilo  oriulur  is  as  true  in  law 
as  in  philrjsophy.  If  void  at  first,  it  continu(Ml  to  be  void  and  a  mdlity 
to  the  time  of  the  deaths  of  the  parlies,  and  their  adniinislralors  could 
derive  no  lawful  title  from  them.  To  say  ib.ii  a  biial  or  e(|iiilal)le 
interest  in  a  fraudulent  contract  can  (!xist  in  a  |)arty  and  be  transmitted 
to  his  administrator,  when  used  as  Icjal  lanirua^e,  is  a  solecism.  And 
if  from  necessity,  upon  any  principle  of  law  or  equity,  the  award  related 
back,  it  would  .seem  that  those  who  punliased  the  interest  in  ilieso 
shares,  at  their  full  market  \'nlue  at  the  lime,  and  i)aid  for  il,  should 
have  tlif;  b(;iiefit  of  the  relations. 

It  may  be  .«aid,  perhaps,  ihat  although  the  acta  of  compress  of  Mexico, 
in  1823  and  1824,  could  not  make  valid  a  contract  t)riginally  voiil  and 
a  mdlity  by  our  laws,  yet  these  acts  of  the  Mexican  leLnslalmc  consii- 
tuled  a  new  and  original  contract  which  at  that  lime  niighi  lawfully  be 
made  by  our  citizens,  and   that  the  rights  of  the  parties  lake  dale  from 


that  contract.  But  this  view  of  the  case  would  not  obviate  the  legal 
objections,  but  on  the  contrary  it  would  add  to  them.  For  it  still 
assumes  the  principle  that  the  State  court  had  a  right  to  examine  into 
the  testimony,  not  only  to  determine  the  rights  of  the  parties  under  the 
award,  but  to  impeach  the  award  itself.  And  upon  this  theory,  if  they 
had  not  found  these  acts  of  the  Mexican  congress  in  the  proceedings  of 
the  commissioners,  tlie  State  court  might  have  held  the  whole  award 
erroneous  and  a  nullity,  vesting  no  rights  in  any  one,  because  it  sanc- 
tioned an  illegal  contract.  As  I  have  already  said,  a  State  court,  in 
iny  judgment,  has  no  such  power. 

The  commissioners  do  not  refer  to  the  Mexican  acts  of  congress,  nor 
allow  the  claims  of  the  company  upon  a  contract  made  by  these  laws, 
T'hey  award  expressly  upon  the  contract  with  Mina,  and  give  interest 
according  to  that  contract.  And  unless  their  award  may  be  impeached 
for  error,  and  their  decision  upon  the  claim  re-examined  and  reversed 
in  the  State  court,  the  rights  of  all  the  claimants  depend  upon  this  con- 
tract, and  take  date  from  it.  According  to  the  award  of  the  commis- 
sioners, it  is  this  contract  that  gave  the  claimants  rights — and  which 
must  consequently  govern  the  court  in  distributing  the  fund. 

It  seems  to  be  supposed  that  the  decision  of  the  court  of  appeals  de- 
claring this  contract  to  be  fraudulent  and  void  was  founded  upon  some 
local  law  of  the  State.  But  that  is  evidently  a  mistake.  It  was 
founded  on  the  breach  of  the  neutrality  laws  of  the  United  States. 
They  looked  behind  the  award  of  the  commissioners,  behind  an 
authority  exercised  under  the  United  States,  and  impeached  its  validity. 

Besides,  no  other  contract  but  this  was  under  examination  in  the 
Slate  court.  The  court  speak  of  no  other  in  their  opinion.  The  par- 
ties, as  appear  by  the  proceedings,  all  claimed  under  it,  and  the  deci- 
sions of  the  court  and  the  distribution  of  the  fund  were  founded  upon 
it.  Can  another  at)d  a  subsequent  contract  be  set  up  here,  upon  which 
the  Slate  court  has  passed  no  judgment,  and  has  not  acted,  and  under 
which  none  of  the  parties  bef'ore  it  claimed?  I  think  not.  And  if 
their  decision  is  to  be  set  aside  for  error,  it  must,  I  presume,  be  for 
error  in  deciding  upon  the  contract  brought  before  them  by  the  parties. 
And  if  ihis  court  now  reverse  these  decrees  upon  the  ground  that  the 
original  contract  with  Mina  was  void,  but  became  valid  by  subsequent 
events,  it  reverses  upon  a  new  case,  upon  which  the  State  court  has 
never  decided.  Moreover,  it  unsettles  the  whole  proceedings  in  the 
State  court,  for  the  interest  of  the  claimants,  in  almost  every  instance, 
depended  upon  the  time  that  a  lawful  right  to  this  claim  vested  in  the 
company. 

And  if,  notwithstanding  these  objections,  this  court  may  look  into 
the  judgment  and  reverse  it  for  error,  and  they  find  it  to  have  been 
decided  upon  two  principles  of  law,  consi^ent  or  inconsistent  with  each 
other,  one  of  which  is  erroneous  and  the  other  sound,  ought  not  the 
judgment  to  be  affirmed? 

Now,  as  I  have  already  said,  the  Stale  court  committed  an  error,  in 
my  opinion,  in  going  behind  the  award,  and  receiving  testimony  to 
show  that  a  contract  was  fraudulent  and  void  which  a  tribunal  of  the 
United  Slates  having  exclusive  jurisdiction  over  the  subject  had  decided 


13 

to  be  lawful   e^ind  valid.     And   if  this  court   have  the  power  to  revise 
that  judgment,  1  lliink  it  could  not  Ije  supported  on  that  ground. 

But  they  put  it  upon  another,  and  say,  that  if  the  original  contract 
is  regarded  as  valid,  then  the  interest  of  the  insolvents  passed  to  their 
trustee,  and,  by  virtue  of  his  assignment,  vested  in  Robert  Oliver 

Now,  in  examining  the  judgment  of  an  inferior  tribunal  in  a  case  of 
this  description,  would  the  appellate  court  lay  hold  of  the  erroneous 
principle  to  reverse  the  judgment?  Woidd  they  not  affirm  it  upon  the 
other  allernaiive,  which  placed  it  upon  lawful  and  tenable  grounds? 
1  think  nobody  would  doubt  that  the  judgment  would  be  affirmed. 
Ought  not  the  same  rule  to  be  applied  to  the  Maryland  judgmeni  which 
this  court  is  now  revising?  And  is  not  this  court  bound,  under  the 
award  of  the  connnissioners,  to  regarti  the  original  contract  as  valid, 
when  it  has  been  so  decided  by  a  lawful  tribunal  of  the  United  Slates, 
having  exclusive  jurisdiction  over  the  subject?  If  we  are  so  bound, 
and  not  authorized  to  impeach  the  judgment  of  the  commissioners, 
then  the  judgment  of  the  Maryland  comt,  in  the  cases  of  Giooding  and 
Williams,  is  risht,  and  ought  to  be  allirmed  upon  the  second  ground 
stated  in  the  opinion,  even  if  we  were  sitting  here  as  an  appellate 
tribunal. 

It  is  true  that  the  bill  in  the  case  of  Williams's  trustee  was  filed  in 
the  State  chancery  court,  wliich,  by  a  change  of  the  law,  represents 
the  court  where  the  fund  was  originally  paid  in  and  distributed  among 
the  claimants;  and  was  removed  to  the  circuit  court  of  the  United 
Slates  by  the  appellees,  who  reside  out  of  the  Stale.  And  undoubtedly, 
ihe  circuit  court,  in  that  stale  of  the  case,  possessed  the  same  power 
over  it,  and  were  bound  to  decide  it  upon  the  same  principles  that 
ought  to  have  governed  the  Slate  court  in  which  the  bill  was  fileil. 
But  there  was  no  new  evidence,  no  new  fact,  no  new  interest  or  ecpiiiy 
presented.  T^'hcre  is  a  new  name  indeed,  but  no  new  interest  or  ecjuiiy 
disclosed  in  the  bill.  And  upon  that  case  the  court  of  appeals  had 
passed  its  decree.  That  decree  was  the  law  of  the  case,  in  the  inferior 
court,  where  this  bill  was  filed.  And  the  court  of  appeals  itself  could 
not  reverse  its  decree,  signed  and  enrolletl  at  a  former  term,  nor  open 
it  merely  because  a  new  name  was  before  them,  which,  according  lo 
its  former  decree,  had  no  interest  in  the  fimd,  and  conse(|ucnily  ou^ht 
not  to  have  l)een  made  a  parly  in  the  former  proceedings.  And  if  we 
ncnv  reverse  (his  jiulgmeiit,  we  go  further  ihau  ibe  Mar)  land  court  of 
appeals  could  have  gone,  and  exercise  what  is  essentially  an  appellate 
jjower  over  it,  correcting  the  errors  of  an  inferior  court. 

But  in  (iooding's  case  this  court  go  siill  fjuiher.  The  i»ill  in  iliis 
case  was  fileil  originally  in  the  circuit  court  of  llie  L/niled  Stales  ^  et 
ilie  fund  was  never  in  that  court,  nor  ihe  money  paid  ii»  iIk^  appellees 
l)y  iis  order.  If  the  decree  is  lo  be  opened  for  error,  afii-r  ihe  fund  is 
(iislril)Ute(i  by  order  of  a  court  of  compelent  jurisdiction,  ought  il  nol  lo 
be  done  in  the  court  that  pass(;d  ihe  decree?  And  ciui  a  circuil  ctiurt 
of  the  United  Stales  compel  the  appelltM's  lo  repay  money  which  iliey 
hold  imder  the  decree  of  a  couit  of  coordinate  juiisdiclion,  made  upon 
the  stune  ca.se,  with  the  same  evidence  before  iheni  .'  1  ihink  nol. 
3 


14 

Besides,  Goodinjr  became  insolvent  again  in  ]  829.  All  the  property, 
rights  and  credits  wliicli  he  had  at  that  time,  vested  in  his  trustees,  who 
are  still  living.  If  Goodwin's  interest  in  1829  had  become  so  far  valid 
that  it  could  pass  by  his  assignment  to  Oliver,  why  is  not  Gooding  s 
also  lawful  and  vested  in  his  trustees?  Upon  what  principle  can  Good- 
win's interest  be  capable  of  assignment  in  1829,  and  Gooding's  remain 
fraudulent  until  his  death  ?  Yet  if  it  was  capable  of  assignment  in 
1S29,  the  complainant  is  not  entitled.     It  passed  to  his  trustees. 

And  if,  as  the  court  now  say,  Goodwin  would  be  estopped  from  im- 
peaching his  assignment  to  Oliver  on  the  ground  that  the  original  con- 
tract was  illegal  and  fraudulent,  why  are  not  Gooding  and  Williams, 
and  their  administrators,  equally  estopped  from  impeaching  their  assign- 
ments to  their  repective  trustee  ?  The  assignment  to  the  trustee  for 
the  benefit  of  their  creditors  was  equally  meritorious  with  Goodwin's 
assignment  to  Oliver.  And  if  they  had  appeared  as  parties  in  the 
Maryland  court,  would  they  have  been  permitted  to  impeach  the  title 
of  the  trustee,  who  was  then  claiming  it,  and  set  up  a  right  to  the 
money  in  themselves,  upon  the  ground  that  the  contract  of  their  respec- 
tive intestates  was  fraudulent?  Certainly  the  principle  is  well  estab- 
lished in  chancery,  that  a  party  cannot  set  aside  a  contract  upon  the 
ground  that  he  himself  was  guilty  of  a  fraud  in  making  it.  1  do  not 
cite  cases  to  prove  familiar  doctrines.  His  administrator  is  in  no  better 
condition.  And  yet  he  is  allowed,  in  this  case,  to  defeat  the  operation 
of  the  intestate's  deed  to  the  trustee,  upon  the  ground  that  the  contract, 
of  which  the  trustee  claims  the  benefit,  was  a  fraudulent  one  on  the 
part  of  his  intestate.  And  here,  in  a  court  of  equity,  these  adminis- 
trators support  (heir  title  and  recover  this  money  against  their  trustees, 
as  well  as  Oliver's  executors,  solely  upon  the  ground  that  their  intestate 
was  guilty  of  a  fraud  in  making  the  contract  with  Mina,  and  incapable, 
therefore,  of  assigning  it.  The  party  defeats  the  operation  of  his  own 
deed,  upon  the  ground  that  he  himself  committed  a  fraud.  This  doc- 
trine cannot,  I  think,  be  maintained  upon  principle  or  authority  in  a 
court  of  chancery. 

We  are  not  dealing  with  Mexican  laws,  or  inquiring  what  a  Mexi- 
can tribunal  or  the  Mexican  Government  would  decide  in  relation  to 
this  contract,  but  we  are  inquiring  how  it  stands  in  a  Maryland  court, 
and  what  are  the  legal  rights  under  it  by  the  laws  of  Maryland.  And 
I  understand  this  court  to  place  its  opinion  solely  upon  the  ground  that 
this  contract  was  fraudulent  and  void  by  the  laws  of  Maryland,  and 
that  the  parties  acquired  no  rights  under  it. 

It  may  liave  been  good  in  Mexico — a  valid,  binding  obligation. 
They  may  have  been  willing  to  reward  our  citizens  for  a  breach  of 
duty  to  their  own  country;  but  that  could  not  cleanse  it  from  the 
offence  against  our  own  law,  nor  give  legal  rights  to  the  administrator, 
when  there  was  no  right  in  the  intestate.  The  courts  of  the  United 
Stales  can  hardly  be  authorized  to  sanction  and  enforce  what  are  called 
honorary  obligations  of  a  foreign  nation,  when  those  obligations  have 
arisen  from  temptations  offered  to  our  own  citizens  to  violate  the  laws 
of  their  own  country.  Nor  can  I  perceive  how  the  opinion  of  the 
Maryland  court,  declining  this  contract  to  be  fraudulent  and  void,  can 


15 

be  binding  and  conclusive  upon  this  court,  and  yet  ev^ery  other  deci- 
sion of  the  same  court,  in  the  same  case,  explaining  or  quahfying 
this  opinion,  still  be  open  to  examination  and  reversed  lor  error.  I 
cannot,  for  m3'self,  draw  any  line  of  distinction  between  the  relative 
conclusiveness  of  the  opinions  the  State  court  expressed,  when  all  of 
them  were  equally  within  its  jurisdiction  and  depended  altogether  upon 
the  laws  of  the  State;  and  all  upon  points  necessarily  arising  in  the 
case  they  are  then  deciding. 

When  these  two  cases  were  before  the  court,  upon  writs  of  error 
brought  by  the  trustees,  I  entertained  the  opinions  I  now  express.  I 
then  thought  that  the  court  had  jurisdiction,  upon  the  ground  that  the 
validity  of  the  act  of  the  Maryland  legislature  of  1841 ,  confirming  a 
certain  description  of  conveyances  made  before  that  time  b\^  the  trustees 
of  insolvent  debtors,  was  drawn  into  question,  as  contrary  to  the  Con- 
stitution of  the  United  States,  and  their  decision  had  been  in  favor  of 
the  validity  of  the  State  law.  And  I  still  think  so.  But  at  the  same 
lime  I  was  of  opinion,  that  the  law  in  question  was  valid,  and  that 
ahhough  we  had  jurisdiction,  the  judgment  of  the  Stale  comt  in  these 
two  cases  ought  to  be  affirmed,  and  the  writs  of  error  not  dismissed. 
For  the  trustee  in  whom  the  shares  vested  (according  to  the  opinion  I 
have  expressed  as  to  Goodwin's  case)  had  transferred  (hem  to  Oliver, 
and  the  State  court  was  tlierefore  right  in  decreeing  them  to  Oliver's 
executors.  The  majority  of  this  court  thought  otherwise,  and  dismissed 
them  for  want  of  jurisdiction.  And  I  did  not  state  my  dissent,  because, 
as  I  then  understood  the  opinion,  the  dismissal  finally  disposed  of  them. 

It  was  upon  the  grounds  above  stated  that  I  decided  these  cases  at 
the  circuit,  and  supposed,  at  the  time  I  was  deciding  them,  in  con- 
formity to  the  opinion  of  this  court  upon  the  conclusiveness  of  the  judg- 
ment of  the  State  court.  The  judgment  just  pronounced,  however, 
shows  that  so  far  as  the  shares  of  Gooding  and  Williams  are  conct.'rned, 
I  misunderstood  the  opinion  of  the  majority  of  this  coiut.  But  with 
all  the  habitual  respect  which  I  feel  for  the  judgment  of  uiy  l)r('tlncn, 
the  opinion  I  held  at  the  circuit  remains  unchanged.  And  1  have  the 
more  confidence  in  it,  because  this  court,  now  as  heretofore,  have  said 
that  the  questions  in  dispute  depend  altogether  on  Maryland  law;  and 
every  judge  in  ^Maryland  who  has  been  rallc*!  upon  to  hear  and  decide 
the  cases  of  Gooding  and  Williams,  of  which  I  am  now  speaking— the 
judge  of  the  court  of  original  chancery  jurisdiction,  the  judges  of  the 
court  of  appeals,  all  men  of  high  legal  altainmrnts  and  eminence — 
have  clearly  and  unanimously  h(;ld,  up(»u  the  same  |Md(. fs  now  Ix-fore 
us,  that  the  executors  of  (Jliver  were  entitled  to  these;  (wo  shar(!s  in 
ilie  Mexican  Company,  and  decreed  (hat  the  money  should  be  paid  (o 
lliem.  And  no  one  Of  lln'se  judges  deemed  it  necessary  (hat  (he 
.idministrators  shoidd  be  parties,  or  called  befon;  the;  court  — acting  no 
iloul)t  upon  the  estai)lish(;d  rules  of  chancery,  that  a  person  who  has 
no  interest  in  the  fund  need  not  and  ought  not  to  be  made  a  party; 
;iiifl  lii.ii  ilie  administrators  could  have  no  interest,  as  (he  intestates 
ilieniselves  had  none  at  the  times  of  their  re^^peciive  deaths.  And  that 
if  ihev  were  before  the  comt,  they  could   uoi   he  allowed  (o  inipearh 


16 


the  deed  to  the  trustees  by  alleging  that  their  intestate  had  committed 


a  fraud  in  making  it. 


I  must,  therefore,  adhere  to  the  opinions  I  entertained  when  the 
cases  were  before  me  at  circuit,  and  dissent  from  the  opinion  just  pro- 
nounced, in  tiie  cases  of  Gooding's  and  VVilliams's  administrators,  and 
concurring  in  that  of  Goodwin's  administrator,  for  the  reasons  herein 
before  stated. 


i 


DECREES  AND  OPINIONS  OF  THE  COURT 
OF  APPEALS  OF  MARYLAND. 

June  Term,  1849. 


COURT    OF    APPEALS,    JUXE    TERM,    1849, 

Charles  Oliver,  Robert  M.  Gibbes,  and  Thoiiitis"] 
Oliver,  executors  of  Robert  Oliver,  and  John  I 
Glenn,  and  David  M.  Ferine,  trustees,  &c.,  | 

vs.  ^ 

George  M.  Gill,  permanent  trustee  of  Lyde  Good- 
win and  others,  appeal  in  the  case  of  Thomas  &. 
While  vs.  D.  Smith  and  others. 

The  appeal  in  this  case  coming  on  for  hearinp;,  and  having  been 
fully  fTiiued  by  the  solicitors  of  the  respective  parlies,  has  been  since 
fully  considered  by  the  court;  and  it  appearing  to  the  court  that  that 
part  of  th<'  decree  appealed  from  of  the  court  below,  which  directed 
any  portion  of  the  fund  in  controversy  to  be  transferred  or  paid  to  the 
appellee,  Geo.  M.  Gill,  as  permanent  trustee  of  Lyde  Goodwin,  was 
erroneous,  and  should  be  reversed;  and  it  also  appearing  to  the  court 
thai  said  portion  of  said  fund  should  be  paid  over  and  transferred  to 
the  appellants.  Charles  Oliver,  Robert  M.  Gibbes,  and  Thomas  Oliver, 
as  exfcutors  of  Robert  Oliver,  in  the  proceedings  mentioned,  together 
with  all  accumulations  of  interest  or  dividends  since  accruing  upon 
the  same: 

It  is  thereupon,  by  this  court,  and  the  authority  thereof,  on  this 
Iweutv  third  day  of  .June,  in  the  year  one  thousand  eight  hmulred  and 
forty-nine,  adjudged,  ordered,  and  decreed,  that  the  said  decree  of  the 
court  below,  so  far  as  the  same  adjudged  and  decreed  any  portion  of 
the  fmid  in  controversy  to  be  transferred  or  paid  to  the  said  George  M. 
Gill,  as  permanent  trustee  of  Lyde  Goodwin,  be  and  the  same  is  re- 
versed and  annulled;  and  this  court  proceeding  to  pass  such  decree  in 
the  premises  as  they  are  of  opinion  should  have  been  passed  by  the 
court  below,  do  further  adjudgi;  and  decree,  that  all  and  every  ))art  of 
such  portion  of  said  fimd,  so  by  the  com  I  below  decreed  to  be  trans- 
ferred or  paid  to  said  George  M.  Ciill,  as  trustee  aforesaid,  he,  by  the 
trustees  in  the  prf)ceediMgs  mentioned,  D.ivid  M .  Terine  and  .Idm 
filemi,  transferred  or  paid  over  to  the  ;ippe||,iiiis,  ( 'barb's  Oliver, 
Robert  M.  (jiiljbes,  and  Thomas  Oliver,  as  executors  of  |{obert  Oliver; 
togetluM-  with  all  and  every  accumulations  of  interest  or  dividends,  or 
investments  of  the  sime,  made  or  accruing  in  and  upon  such  part  or 
portion  of  said  bmd;  iiml  it  is  buther,  by  this  coiut  and  its  autlnjrily, 
adjudged  and  d(;creed,  that  all  other  portions  of  the  decree  of  the  court 
below,  except  such  as  is  hereby  reversed,  be,  and  the  same  is  In-reby, 
ainrmed;  it  is  fmther  adjudged  and  decreed,  that  the  reversal  of  the 
decree  of  the  court  below  be  without  costs, 

Tiio   ir  i)ok.sl:Y; 

ARA  fSPLNClv 


18 

Aiul  thereupon,  according  lo  (he  provisions,  force,  and  effect  of  the 
act  of  the  General  Assembly  of  Maryland  of  1832,  chapter  302,  section 
(J,  the  said  court,  of  appeals  here  tile  (he  opinions  of  the  court  for  and 
in  respect  of  its  determination  of  the  appeal  aforesaid,  the  determination 
of  the  said  court  of  appeals  being  had  upon  oral  argument  on  (he  part 
of  the  parties  aforesaid,  and  which  said  opinions  are  as  follows  to  wit: 

The  opinion  of  the  honorable  Robert  N.  Martin,  one  of  the  judges  of 

the  said  court. 

Executors  of  Robert  Oliver"^ 


vs. 


George  M.  Gill,  trustee  of  Lyde  f 
Goodwin.  J 

In  my  opinion  the  decree  of  the  court  below  in  (his  case  was  correct 
and  ought  to  be  affirmed. 

I  think  that  G.  M.  Gill  is  to  be  considered,  upon  the  true  construction 
of  the  insolvent  laws  of  Maryland,  as  duly  and  legally  appointed  the 
permanent  trustee  of  L.  Goodwin,  and  as  such  trustee  was  competent 
to  institute  this  petition. 

Those  who  claim  the  share  of  Lyde  Goodwin  in  the  Mexican  asso- 
ciation, as  the  representatives  of  Robert  Oliver j  rel}'-  upon  the  deed  of 
G.  J.  Brown,  of  the  21st  of  March,  1825,  and  upon  tiie  assignment  of 
L.  Goodwin  to  Robert  Oliver,  of  the  30th  of  May,  1829. 

In  my  opinion  the  appellants  cannot  make  title  to  the  share  in  ques- 
tion through  either  of  these  deeds. 

G.  J.  Brow^n,  as  the  provisional  trustee  of  L.  Goodwin,  was  certainly 
incompetent  to  convey  this  property;  and  it  is,  I  think,  equally  clear 
that  L.  Goodwin,  by  his  application  for  the  benefit  of  the  insolvent 
laws,  became  incapable  of  assigning  any  portion  of  his  estate. 

In  my  opinion  there  is  no  force  in  the  objection  that  G.  M.  Gill,  as 
the  trustee  of  L.  Goodwin,  cannot  insist  upon  this  claim,  assuming  it 
to  be  in  other  respects  unexceptional,  upon  the  ground  of  its  supposed 
original  turpitude  as  an  infraction  of  the  law  of  nations  or  (he  neutrality 
act  of  1794. 

I  think  that  the  treaty  between  the  United  States  and  Mexico,  of  the 
ll^A  of  September,  1829,*  and  the  act  of  Congress  of  the  12th  of  June, 
1840,  passed  for  the  purpose  of  carrying  into  execution  the  stipulations 
of  the  treaty,  and  the  award  of  the  commissioners  under  this  treaty,  are 
to  be  considered  as  a  conclusive  and  binding  recognition  of  the  validity 
of  this  claim,  and  that  it  is  not  in  this  proceeding  to  be  questioned  or 
disputed. 

*  The  date  of  the  treaty  is  the  11th  April,  1«39. 


19 

The  opinion  of  (he  honorable  Thomas  B,  Dorsey,  chief  judge,  and 
of  llie  honorable  Aia  Spence,  judge. 

June  term,  1849. 

Court  of  appeals.     Appeal  from  the  equity  side  of  Baltimore  county 

court. 

Oliver's  executors  and  others  "^ 

George  M.  Gill,  permanent  trustee  of  Lyde  f     °' 
Goodwin  and  all.  J 

The  majority  of  this  court,  who  sat  in  the  trial  of  this  cause  (and  by 
which  was  decreed  (he  reversal  of  the  decree  of  the  county  court)  at 
the  instance  of  the  solicitors  of  (he  appellees,  briefly  sta(e  the  following 
as  their  reasons  for  such  reversal:  They  are  of  opinion  that  the  entire 
contract,  upon  which  the  claim  of  the  appellees  is  founded,  is  so  fraught 
with  illegality  and  turpitude,  as  to  be  utterly  null  and  void,  and  con- 
ferring no  rights  or  obligations  upon  any  of  the  contracting  parties  which 
can  be  sustained  or  countenanced  by  any  comt  of  law  or  equity  in  this 
State  or  of  the  United  States;  that  it  has  no  legal  or  moral  obligadon 
to  support  it,  and  that,  therefore,  under  the  insolvent  laws  of  Mary- 
land, such  a  claim  does  not  pass  to  or  vest  in  the  trustee  of  an  insolvent 
pe(itioner.  It  forms  no  part  of  his  property  or  estate,  within  the  mean- 
ing of  the  legislative  enactments  constituting  our  insolvent  system.  It 
bears  no  analogy  to  tlic  cases,  decided  in  Maryland  and  elsewhere,  of 
claims  not  recoverable  in  a  court  of  justice,  which  nevertheless  have 
been  held  to  vest  in  the  trustees  of  an  insolvent  or  the  assignees  of  a 
bankrupt.  In  the  case  referred  to,  the  claims  as  concerned  those 
assorting  theuj,  were,  on  their  part,  tainted  I)y  no  princi])lc  of  illcgalilv 
(»r  immorality;  on  the  contrary,  were  sustained  b)'  every  ])rinoiple  of 
national  law  and  national  justice,  and  nothing  was  wanting  to  lender 
them  recuperaljle,  but  a  judicial  tribimal  competent  to  lake  cognizance 
(liercf)f.  Wholly  dissimilar  is  the  claim  i)efore  us.  Such  is  its  charac- 
ter, that  it  cannot  be  presentetl  to  a  court  of  justice  but  b}'  a  disclosmc 
of  its  impurities;  and  if  any  thing  is  conclusively  settled,  or  ought  to 
be  so  regarded,  it  is,  (hat  a  claim,  thus  imbut-d  with  illegality  and  cor- 
ru|)lion,  will  never  be  sanctioned  or  enforced  by  a  coiut  either  df  law 
or  e(|iiiiy. 

I'lntr-rlaining  this  view  of  the  case,  it  is  unnecessaiy  to  examine  ihc 
various  minor  ])oinls  which  were  raisi^l  in  ilic  argument  before  us. 


20 


> 


> 


Nathaniel  Williams,  permanent  trustee  of  James 

Williams,  appellant, 

vs. 

Charles  Oliver,  Robert  M.  Gibbes,  and  Thomas 

Oliver,  executors  of  Robert  Oliver,  and  others, 

appellees. 

Nathaniel  Williams,  permanent  trustee  of  John 

Gooding,  appellant, 

vs. 

Charles  Oliver,  Robert  M.  Gibbes,  and  Thomas 

Oliver,  executors  of  Robert  Oliver,  and  others, 

appellees, 

Hannah   C.    Williams,  administratrix    of  James  1 
W.  Williams,  appellant,  j 

1 

Charles  Oliver,  Robert  M.  Gibbes,  and  Thomas  [ 

Oliver,  executors  of  Robert  Oliver  and  others,     j 

appellees.  J 

John  M.  Gordon,  permanent  trustee  of  John  W. 
Stump,  appellant, 
vs. 
Charles  Oliver,  Robert  M.  Gibbes,  and  Thomas  ^ 
Oliver,  executors  of  Robert   Oliver,  and  others, 
appellees. 


> 


In  the  case  of  Thomas  &  White  vs.  Dennis  Smith  and  others,  and 
on  the  appeal  of  Nathaniel  Williams  from  the  decree  in  said  cause. 

In  the  court  of  appeals  for  the  Western  Shore  of  Maryland, 

June  term,  1849. 

The  several  appeals  above  meniioned  of  Nathaniel  Williams,  trustee 
of  James  Williams;  Nathaniel  Williams,  trustee  of  John  Gooding;  of 
Hannah  C.  Williams,  administratrix  of  James  \V.  Williams;  and  John 
M.  Gordon,  permanent  trustee  of  John  W.  Stump,  from  the  decree  of 
the  court  below  in  this  cause,  Iiaving  come  on  for  hearit)g,  and  having 
been  fully  argued  by  the  counsel  for  the  respective  parties,  and  con- 
sidered by  the  court,  and  this  court  being  of  opinion  that  there  is  no 
error  in  the  decree  of  the  court  below  in  awarding  and  decreeing  to  the 
said  appellees,  Robert  M.  Gibbes,  Charles  Oliver,  and  Thos.  (Oliver, 
executors  of  Robert  Oliver,  for  the  shares  of  John  Gooding  and  James 
Williams,  in  certificates  the  sum  of  forty-two  thousand  eight  hundred 
and  twenry-seven  dollars  and  seventy-three  and  a  third  cents, 
§42,827  7'A  i-'j,  and  in  money  sixteen  thousand  three  hundred  and 
twenty-one  dollars  and  seventy-one  cents  (.|5l6,32]  ^Vir);  '""^'  ''''il^  ^t'*'- 
said  decree  of  the  court  below  ought  to  be  affirmed  as  against  each  and 
all  of  the  above  menticjned  appellants. 

It  is  thereupon,  this  23(1  day  of  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  forty-nine,  by  this  court  and  the  authority 


21 

thereof,  upon  the  said  appeal  of  the  said  Nathaniel  Williams,  trustee 
of  Jaines  Williams,  ordered,  adjudged,  and  decreed,  tlial  the  said  de- 
cree of  the  court  below,  awarding  and  decreeing,  as  aforesaid,  the  share 
of  the  said  James  Williams  to  the  said  Robert  M.  Gibbes,  Charles  Oli- 
ver, and  Thomas  Oliver,  executors  of  Robert  Oliver,  be  and  the  same 
is  hereby,  in  all  respects,  affirmed,  without  costs,  as  against  the  said 
appellant,  trustee  of  James  Williams. 

And  it  is  thereupon,  this  23d  day  of  June,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  forty-nine,  by  this  court  and  the 
authority  thereof,  further  ordered,  adjudged,  and  decreed,  on  the  appeal 
of  said  Nathaniel  Williams,  trustee  of  John  Gooding,  that  the  said 
decree  of  the  court  below  awarding  and  decreeing  to  the  said  Robert 
M.  Gibbes,  Charles  Oliver,  and  Thomas  Oliver,  executors  of  Robert 
Oliver  as  aforesaid,  the  share  of  said  John  Gooding,  be  and  the  same 
is  in  all  respects  affirmed  without  costs  as  against  said  appellant  Wil- 
hams,  as  trustee  of  said  Gooding,  And  it  is  also,  on  the  day  and  year 
aforesaid,  and  by  the  authority  of  this  court,  further  ordered,  adjudged, 
and  decreed,  on  the  appeal  of  Hannah  C.  Williams,  administratrix  of 
James  W.  Williams,  that  the  said  decree  of  the  court  below,  awarding 
and  decreeing  to  the  said  Robert  M.  Gibbes,  Charles  Oliver,  and 
Thomas  Oliver,  executors  of  Robert  Oliver  as  aforesaid,  the  share  of 
said  James  Williams,  be  and  the  same  is  hereby,  in  all  respects,  affirmed 
without  costs  as  against  the  said  appellant.  And  it  is  further  ordered, 
adjudged,  and  decreed,  by  the  authority  aforesaid,  on  the  appeal  of 
said  John  M.  Gordon,  permanent  trustee  of  John  W.  Stump,  that  the 
said  decree  of  tlie  comt  below,  awarding  and  decreeing  as  aforesaid  the 
share  of  James  Williams  to  the  said  Robert  M.  Gibbes,  Charles  Oliver, 
and  Thomas  Oliver,  executors  of  Robert  Oliver,  be  and  the  same  is 
hereby,  in  ail  respects,  affirmed  without  costs  as  against  the  said 
appellant. 

And  it  is  further  ordered,  adjudged,  and  decreed,  by  the  authority 
aforesaid,  that  the  said  appellees  and  trustees,  John  Glenn  and  David 
M.  Perine,  pay  to  the  said  Robert  M.  Gil>bes,  Charles  Oliver,  and 
Thomas  (Jliver,  executors  of  Robert  Oliver,  the  aforesaid  amount  in 
ccriificates,  and  the  aforesaid  amount  in  money,  decreed  to  ihe  said 
executors  by  the  aforesaid  decree  of  the  court  below,  for  the  shares  of 
John  (iooding  and  James  Williams,  together  widi  all  inlrrcsl,  profits, 
or  accmnulations  ihereon,  which  may  have  arisen  and  been  received 
by  lhem,lhe  said  Uiislees,  on  account  of  said  certificaU-'S,  or  on  account 
and  from  any  investment  of  any  i)roceeds  of  the  said  sinn  decreed  to 
i)e  paid  in  money,  which  may  have  been  inaiNr  under  iIk-  order  and 
direction  of  die  roinl  brlow.  THOS.   B.   l)()RSi:Y, 

ARA  SPHNCH, 
ROJ'.CRT  [V.  MARTIN. 

And  liicrcupon,  according  lo  llic  provisions,  force,  form,  and  ellcct 
of  (he  act  of  the  (ieneral  Assembly  of  Maryland  of  1832,  chapter  302, 
section  0,  the  said  coint  of  appeals  iiere  fde  the  opinions  of  (he  coint 
for  and  in  resp(;ct  of  ils  delcrmination  of  Uk-  ap|i<;d  .iforcsaid,  the 
determination  of  ihe  said  coini  of  aftpeals  being  had  upon  oral  argu- 
1 


22 

nient  on  the  part  of  the  parties  aforesaid,  and  which  said  opinions  are 
as  follows,  to  wit: 

The  opinion  of  the  honorable  Robert  N.  Martin,  one  of  the~ judges  of 
the  said  court,  in  the  matter  of  N.  Williams,  trustee  of  John  Gooding. 

The  decree  of  the  court  below  in  this  case,  1  think,  ought  to 
be  affirmed. 

1  consider  the  order  of  Baltimore  county  court,  passed  at  the  Marcii 
term,  1S25,  authorizing  the  trustee  to  dispose  of  any  portion  of  the  in- 
solvent's estate  remaining  undisposed  of,  &c.,  to  be  a  valid  order, 
although  not  filed  or  recorded;  and  that  it  gave  to  the  trustee,  by  its 
terms,  the  right  to  sell  the  property  in  controversy. 

I  also  think  that  Geo.  Winchester  is  to  be  considered,  upon  the  facts 
exhibited  in  the  record,  as  duly  and  legally  appointed  the  permanent 
trustee  of  .lohn  Gooding,  and  that  the  sale  by  him  of  this  share  to 
Robert  Oliver  was  fairly  and  bona  fide  made  within  the  meaning  of  the 
act  of  Assembly  of  1841,  ch.  309;  and  that  the  said  act,  violating  sales 
made  by  trustees,  notwithstanding  they  shall  not  have  given  bond  with 
security,  is  ^  constitutional  exercise  of  legislative  power. 

Upon  these  grounds  the  decree  below  ought,  I  tfiink,  to  be  affirmed. 


I 


Tiie  opinion  of  the  honorable  Robert  N.  Martin,  one  of  the  judges 
of  the  said  court,  in  the  matter  of  N,  Williams,  trustee  of  James 
Williams. 

The  decree  of  the  court  below  ought,  I  think,  to  be  affirmed  in  tliis 
case,  for  reasons  assigned  in  the  case  of  N.  Williams,  trustee  of  John 
Gooding,  against  the  executors  of  Robert  Oliver. 

I  think  that  Geo.  Winchester  is  to  be  considered,  upon  the  facts 
exhibited  in  this  record,  as  duly  and  legally  appointed  the  permanent 
trustee  of  James  Williams;  that  the  sale  by  him  of  the  shares  in  .con- 
troversy to  Robert  Oliver  was  fairly  and  bona  fide  made  within  the 
meaning  of  the  act  of  Assembly  of  1841 ,  ch.  309;  and  that  that  statute 
being,  in  my  opinion,  neither  repugnant  to  the  Constitution  of  the 
United  States  nor  the  constitution  of  the  Slate  of  Maryland,  is  to  [be] 
regarded  as  a  valid  exercise  of  legislative  power. 


The  opinion  of  the  honorable  Thomas  B.  Dorsey,  chief  judge,  and 
of  the  honorable  Ara  Spence,  judge. 

June  term,  1849. — (Jourt  of  appeals,  W.  S.  JVkJ. 
No.  144,  145,  140,  147,  148,  149. 

The  solicitors  for  the  a])pellants  in  the  foregoing  cases  having,  with 
a  view  to  an  appeal  from  the  decrees  of  affirmance  by  this  court,  re- 
cjuested  some  expression  of  the  grounds  on  which  said  decrees  of  affirm- 
ance were  passed,  the  undersigned,  being  two  of  the  three  judges  who 
sat  in  judgment  in  those  cases,  stale,  that  the  grounds  on  which  they 
affirmed  the  judgments  were — first,  the  reasons  assigned  by  the  majority 


J3 


of  this  court  for  the  reversal  of  the  decree  in  No.  143,  Oliver's  ex'rs 
and  al.  vs.  Gill,  permanent  trustee  of  Goodwin;*  and  that  if  in  this 
there  was  error,  the  judgments  were  affirmed  in  No.  144,  hecause 
George  P.  Stevenson  forfeited  his  claim  by  his  failure  to  comply  with 
the  stipulations  in  his  contract,  and  because  he  surrendered  up  to  his 
co-associates  all  his  interest  in  the  Mexican  Company;  in  Nos.  145 
and  14G,  because,  under  the  proceedings  based  on  or  originating  from 
the  insolvent  petitions  of  John  Gooding  and  James  Williams,  and  the 
act  of  Assembly  applicable  thereto,  Robert  Oliver  acquired  a  valid  title 
to  all  (he  interest  of  said  James  Williams  and  John  Gooding  in  the 
fund  in  controversy;  in  Nos.  147  and  14S,  for  the  reasons  assigned  by 
Judge  Martin  as  the  basis  of  his  opinion  in  those  cases;  and  in  No.  149, 
because  the  appellant  therein  hath  shown  no  title  to,  or  interest  in.  the 
fund  in  controversy,  either  upon  the  law  or  facts  in  the  case. 

June  26th,  1849.  THOS.  B.  DORSEY, 

ARA  SPENCE. 


*  See  page  19. 


SUPREME  COURT  OF  THE  UNITED  STATES, 

December   Term,    1850. 


George  M.  Gill;  Trustee,  &c.  of  Lyde  Goodwin, 

vs. 

Robert  Oliver's  Executors,  and  Glenn  &  Ferine, 

Trustees. 

Mr.  Justice  GRIER  delivered  the  opinion  of  the  court. 

If  this  court  can  take  jurisdiction  of  this  case  under  the  twenty-fifth 
section  of  the  Judiciary  Act,  it  must  be  under  either  the  first  or  third 
clause,  as  the  second  is  admitted  to  be  wholly  inapplicable  to  it. 

1.  The  first  is,  "  where  is  drawn  in  question  the  validity  of  a  treaty 
or  statute  of,  or  an  authority  exercised  under  the  United  States,  and 
the  decision  is  against  their  validity." 

2.  The  third  is,  '•  where  is  drawn  in  question  the  construction  of 
any  clause  of  the  Constitution,  or  of  a  treaty  or  statute  of,  or  commis- 
sion held  under  the  United  States,  and  the  decision  is  against  the  title, 
right,  privilege,  or  exemption  specially  set  up  or  claimed  by  either 
party  under  such  clause,"  &c. 

1.  We  have  sought  in  vain  through  the  record  of  this  case  to  find 
any  question  raised  directly  by  the  pleadings,  or  "  by  clear  and  neces- 
sary intendment  therefrom,"  touchingthe  validity  of  any  treaty,  statute, 
or  authority  exercised  under  the  United  States. 

Both  parties  claim  certain  moneys  in  court  as  assignees  of  Lyde 
Goodwin  who  was  a  member  of  the  "  Baltimore  Mexican  Company," 
and  entitled  to  a  certain  proportion  of  the  money  awarded  to  said  com- 
pany as  a  just  claim  on  the  Mexican  government.  The  validity  of 
tlie  award,  or  the  treaty  under  which  it  was  made,  is  not  called  in 
question  by  either  party,  as  both  claim  under  them.  In  order  to  ascer- 
tain the  effect  of  certain  previous  assignments  made  by  Lyde  Goodwin, 
the  history  of  the  origin  of  his  claim  necessarily  makes  a  part  of  the  case. 

The  treaty  and  award  are  introduced  as  a  part  of  lliis  history,  as 
facts  not  disputed  by  either  party.  The  money  being  in  court,  both 
the  treaty  and  the  award  were  fimcti  ojjicio,  and  no  decision  of  the 
rights  of  the  claimants  inter  se  can,  in  the  nature  of  the  case,  involve 
the  validity  of  either. 

The  decision  of  the  Court  of  Appeals,  that  the  original  contract  with 
Mina  in  1816  did  not  create  such  a  debt  as  would  pass  by  the  insol- 
vent laws  of  Maryland,  neither  directly  nor  by  implication  (jucstions 
the  validity  of  any  treaty,  statute,  or  authority  under  the  United  States. 

That  the  Baltimore  Mexican  Company  set  on  foot  and  prepared  the 
means  of  a  military  expedition  against  the  territories  and  dominions  of 
the  king  of  Spain,  a  foreign  prince  with  whom  the  United  States  were 
at  peace,  is  a  fact  in  the  history  of  the  case  not  disputed,  and  which  if 
wrongly  found  by  the  court  would  not  give  us  jurisdiction  of  the  case. 


i 


'25 

Tliat  such  conduct  of  the  company  in  making  their  contract  with 
General  Mina  was  a  high  misdemeanor,  punishable  with  fine  and  im- 
prisonment by  the  fifth  section  of  the  act  of  the  oth  of  June,  1794, 
chap.  51,  cannot  be  disputed  by  any  one  who  will  read  the  statute; 
and  the  conclusion  drawn  therefrom  by  the  court  below,  that  the  con- 
tract of  the  company  with  Mina  in  1816,  being  founded  on  an  illegal 
transaction,  was  void  by  the  law  of  Maryland,  where  it  was  made, 
and  passed  no  equity,  right,  or  title  whatsoever  to  an  insolvent  assignee 
in  1S17,  involved  no  question  of  "  the  validity  of  any  treaty  or  statute 
of,  or  an  authority  exercised  under  the  United  States." 

The  validity  or  binding  eflect  of  the  original  contract  with  Mina  is 
neither  directly  nor  indirectly  affirmed,  either  in  the  convention  with 
Mexico  or  in  the  award  of  the  commissioners  under  it. 

The  fact  that  the  "  Baltimore  Mexican  Company  "  exposed  not 
only  their  property  to  capture  by  the  Spanish  vessels  of  war,  but  their 
own  persons  to  fine  and  imprisonment  by  the  authorities  of  the  United 
States,  only  enhanced  the  justice  and  equit}^  of  their  claims  against  the 
new  govenmient  of  Mexico. 

The  original  contract  with  General  Mina  was  a  Maryland  contract, 
and  its  validity  and  construction  are  questions  of  Maryland  law,  which 
this  court  is  not  authorized  to  decide  in  the  present  action. 

2.  We  are  equally  at  a  loss  to  discover  in  this  record  where  or  how 
"  the  construction  of  an}'^  clause  of  the  Constitution,  or  of  a  treaty  or 
statute  of,  or  commission  held  under  the  United  States,"  is  drawn  in 
question  in  this  case. 

As  we  have  already  said,  both  parties  claim  money  in  court;  and, 
in  order  to  test  the  value  of  their  respective  assignments  from  Lyde 
Goodwin,  introduce  the  history  of  the  claim  from  its  origin. 

The  treaty  and  award  are  facts  in  (hat  history.  Tiicy  were  before 
(he  court  but  as  facts,  and  not  for  construction.  If  A  hold  land  under 
a  patent  from  the  United  States  or  a  Spanish  grant  ratified  by  treaty, 
and  his  heirs,  devisees,  or  assignees  dispute  as  to  which  has  (he  best 
title  under  him;  this  does  not  make  a  case  for  (he  jiuisdictiou  of  (his 
court  under  (he  (wenty-fifih  section  of  the  .ludiciary  Act.  If  ueiilifr 
the  validity  nor  construction  of  the  patent  or  title  uiuhir  (he  treaty  is 
contested,  if  both  })arties  claim  under  it,  and  (he  con(est  arises  from 
some  (juestion  without  or  dehors  (he  patent  or  (he  (reaty,  it  is  plainly 
no  case  for  our  interference  under  (his  section. 

'IMiat  the  title  originated  in  such  a  patcnl  or  (reaty  is  a  fact  in  (he 
history  of  the  case  inci(len(al  (o  it,  but  (he  essential  cc)n(rov«'rsy  )>••- 
Ivveen  the  pardes  is  widioiit  and  Ix-yond  i(.  So  in  (his  case,  both  claim 
the  money  in  court.  It  is  a  fact  (liat  (Ik;  morK^y  has  been  paid  by  (Ik; 
republic  of  Mexico,  on  a  claim  which  has  becMi  itronounccd  just  and 
ccjuiiabN;  In'  conuuissioners  mider  the  convention  of  18.'{'.).  It  is  a  fact, 
also,  that  the  origin  of  this  claim  was  for  arms  and  ammunition  furn- 
ished for  an  expedition  under  (ieneral  Mina,  for  the  purpose  of  insur- 
rection against  the  Spanish  government.  It  isafiict,  that  the  IJ.iItimore 
Mexican  Company,  or  the  individuals  composing  it,  e\])ose(l  (heiu- 
selves  to  punishment  under  the  neutiality  act.  It  is  a  fact,  also,  (hat 
afterwards,  when  Mexico  had  succeeded  in  es(ai>lishing  her  indepenil- 


26 

ence;  "when  her  rebellion  had  become  a  successful  revolution;  that  she 
very  justly  and  honorably  made  herself  debtor  to  those  who  perilled  their 
properly  and  ])ersons  in  her  service  at  the  commencement  of  her 
struggle.  It  is  a  fact  that,  though  this  claim  was  acknowledged  as  a 
just  debt  by  Mexico  as  early  as  1825,  payment  was  never  obtained  till 
after  the  award  of  the  commissioners  under  the  convention  with  Mexico 
in  1839,  ''  for  the  adjustment  of  claims  of  citizens  of  the  United  States 
on  the  Mexican  republic."  It  is  a  fact,  that  this  claim  thus  recognized 
by  the  Mexican  Congress  was  pronounced  a  just  debt  in  favor  of 
citizens  of  the  United  States  against  the  republic  of  Mexico. 

But  w^iether  this  debt  of  the  Mexican  government,  first  acknow- 
ledged and  made  tangible  as  such  in  1825,  did  previously  exist  as  an 
equity,  a  right,  or  a  chose  in  action  capable  of  passing  b}^  assignment 
under  the  insolvent  laws  of  Maryland  in  1817,  is  a  question  not  settled 
in  the  treaty  or  award,  nor  involving  any  question  as  to  the  construc- 
tion of  either,  but  arising  wholly  from  without,  and  entirely  indepen- 
dent of  either  the  one  or  the  other.  The  treaty  was,  that  ''  all  claims 
of  citizens  of  the  United  States  found  to  be  just  and  equitable  should 
be  paid."  The  award  was,  that  this  claim  of  the  "  Baltimore  Mexi- 
can Company,"  which  had  been  acknowledged  in  1825  as  a  valid 
claim  by  Mexico,  was  a  just  debt,  not  a  false  or  feigned  one,  and  ought 
to  be  paid.  The  money  is  awarded  to  be  paid  to  Glenn  and  Ferine 
"  in  trust  for  whom  it  may  concern."  The  award  does  not  undertake 
to  settle  the  equities  or  rights  of  the  different  persons  claiming  to  be 
legal  or  equitable  assignees  or  transferees  of  the  interests  of  the  several 
members  of  the  company.  That  is  left  to  the  tribunals  of  the  State 
where  the  members  of  the  company  resided  and  the  assignments  were 
made.  In  deciding  this  question,  the  courts  of  Maryland  have  put  no 
construction  on  the  treaty  or  award,  asserted  by  one  party  to  be  the 
true  one  and  denied  by  the  other.  It  was  before  them  as  a  fact  only, 
and  not  for  the  purpose  of  construction.  Whether  this  money  paid 
into  court,  under  the  award  and  first  acknowledged  by  Mexico  as  a  debt 
in  1825,  existed  as  a  debt  transferable  by  the  Maryland  insolvent  laws 
in  1817,  or  whether  it,  for  the  first  time,  assumed  the  nature  of  a  chose 
in  action  transferable  by  assignment  after  1825,  when  acknowledged 
of  record  by  Mexico,  and  passed  by  the  assignment  of  Lyde  Goodwin 
to  Robert  Oliver,  was  a  question  wholly  dehors  the  treaty  and  award, 
and  involving  the  construction  of  the  laws  of  Maryland  only,  and  not 
of  any  treaty  or  statute  or  commission  under  the  United  States. 

It  is  a  conclusive  test  of  the  question  of  jurisdiction  of  this  court  in 
the  present  case,  that,  if  we  assume  jurisdiction,  and  proceed  to  consider 
the  merits  of  the  case,  we  find  it  to  involve  no  question  either  of  validity 
or  construction  of  treaties  or  statutes  of  the  United  States. 

But  the  only  questions  in  the  case  will  be  found  to  be,  what  was 
the  effect  of  the  appointment  of  George  M,  Gill  in  1837  as  permanent 
trustee,  under  the  insolvent  laws  of  Maryland  of  1805?  Was  the  void 
and  illegal  contract  with  Mina,  made  in  1816,  such  a  chose  in  action 
as  would  pass  by  such  insolvent  law  in  1817?  Or  did  it  first  become 
an  assignable  claim  after  it  was  acknowledged  by  Mexico  in  1825,  and, 
as  a  new  acquisition  of  Lyde  Goodwin  after  his  insolvency,  pass  by 


■-Vi' 


27 

his  assignment  lo  Oliver?  A  resolution  of  these  questions,  by  or 
through  any  thing  to  be  found  on  the  face  of  the  treaty  or  award,  or 
any  necessary  intendment  or  even  possible  inference  therefrom,  is 
palpably  impossible. 

The  whole  case  evidently  turns  on  the  construction  of  the  laws  of 
Maryland,  and  on  facts  connected  with  the  previous  history  of  the 
claim,  which  are  not  disputed,  and  which  are  incidental  to  the  treaty 
and  award,  but  which  raise  no  question  either  as  to  their  validity  or 
construction. 

This  case  is  therefore  dismissed  for  want  of  jurisdiction. 

Mr.  Chief  Justice  TANEY,  Mr.  Justice  McLEAN,  Mr.  Justice 
WAYJNE,  and  Mr.  Justice  WOODBURY  dissented. 

Chief  Justice  TANEY  stated  that,  in  liis  opinion,  this  court  had 
jurisdiction  of  the  question  upon  wiiich  the  case  was  decided  in  the 
Court  of  Appeals  of  Maryland,  and  that  their  decision  was  erroneous, 
and  ought  to  be  reversed. 

Mr.  Justice  McLEAN  concurred  in  opinion  with  the  Chief  Justice. 

Mr.  Justice  WOODBURY. 

I  object  to  the  form  of  the  judgment  to  be  entered  in  this  case,  rather 
than  to  the  results  of  it  to  the  parties.  By  dismissing  the  writ  of  error 
for  want  of  jurisdiction,  as  is  done  here,  the  judgment  in  the  Slate 
court  is  left  in  full  force;  whereas,  in  my  view,  this  court  has  jurisdic- 
tion, and  should  affirm  the  judgment  in  the  State  court,  thus  leaving 
it,  as  the  other  course  does,  in  full  force,  but  on  dilFerent  grounds. 
The  consequence  to  the  parties,  by  pursuing  either  course,  did'ers  so 
little,  that  it  does  not  seem  necessary  to  go  into  any  elaborate  c.\i)osilion 
of  the  reasons  for  this  dissent,  and  I  shall  tlicrefore  content  myseU"  with 
stating  only  the  general  grounds  for  it. 

All  that  seems  indispensable  to  give  jiiiisdjction  to  us  in  this  class  of 
cases  is,  that  the  plaintiff  in  error  shoidd  have  set  u]),  in  support  of  his 
claim  in  the  State  court,  some  right  or  title  under  a  treaty  or  doings  by 
authority  from  Congress,  and  that  it  should  Ik;  oxcrnded  by  tlw  Stole 
court.  See  the  twenly-nflh  s<;clioii  of  the  act  of  1 7S9  (1  Slat,  at 
Large,  85),  and  various  decisions  under  it,  including  Owings  v.  North- 
wood's  Lessee.  5  Crancli,  34H,  and  Smiih  v.  Maryland,  (>  (./lancli, 
'M\;  2  Howard,  .']72.  Here  the  appellant  set  u|)  in  his  bill  a  (  l;iim 
to  money  nncb-r  a  treaty  with  Mfxico,  and  an  award  under  ii  by  <(iii)- 
missioners  apjjointcd  by  an  act  of  Ctjugress,  and  the  Stale  court,  in  bis 
opinion,  overruled  his  claim.  This,  in  my  view  gives  jurisdiclion  to 
us,  whether  the  State  court  decided  right  or  wrong.  See  Armsiiong 
i;.  Athens  County,  10  l^'ieis,  2S5;  Milb-r  ?;.  Niclids,  4  Wliml,  :^M  . 
The  very  object  of  the  writ  of  error  is  lo  ascrrlain  wliillicr  llicy  did 
decide  right  or  wrong,  and  the  jurisdiction  to  make  this  revision  of  iheir 
opinion  arises  not  from  its  error,  but  itsHubjecl-m.'Utrr;  the  latter  being 
a  claim  set  iqi  under  some  United  States  auiliority.  Neilson  v.  Lagow, 
7  Ilowanl,  775. 


28 

The  next  and  only  remaining  inquiry  for  me,  supposing  that  we 
have  jurisdiction,  is,  whether  the  State  court  formed  a  right  conclusion 
in  overruling  the  claim  set  up  hy  the  appellant.  I  think  they  did. 
So  far  as  it  rested  on  authority  under  the  United  States,  it  is  by  no 
means  clear  that  they  overruled  it  improperly.  The  claim,  so  far  as 
regards  the  enforcement  of  tlie  treaty  with  Mexico,  does  not  seem  to 
have  been  overruled  in  terms  by  the  State  court.  That  court  did  not 
decide  that  the  treaty  was  corrupt  or  illegal,  or  in  any  way  a  nullity, 
when  they  held  that  the  original  contract  violated  the  laws  of  neutrality. 
So  far,  too,  as  regards  the  award  made  by  the  commissioners,  that  the 
Baltimore  Mexican  Company  and  their  legal  representatives  had  a  just 
claim  under  the  treaty  for  the  amount  awarded,  it  was  not  overruled 
at  all. 

It  is  not  manifest,  then,  that  any  thing  really  in  the  treaty  or  in  the 
award,  set  up  by  Gill,  the  plaintiff,  was  actually  decided  against,  but 
only  something  he  claimed  to  be  there; — that  when  the  appellants 
claimed  diat  he,  rather  than  others,  was  legally  entitled  to  one  ninth 
of  the  sum  awarded  to  the  Baltimore  Mexican  Company,  the  State 
court  seems  to  have  overruled  that.  But  in  doing  this,  they  must  still 
have  held  the  treaty  itself  to  be  valid,  and  the  award  of  the  commis- 
sioners under  it  to  be  valid,  or  they  could  not  have  decreed  this  share 
of  the  fund  to  Oliver's  executors,  as  they  appear  to  have  done  ex- 
pressly by  the  record. 

All  must  concede,  that  the  State  court  speaks  in  its  language  against 
the  Mina  "contract"  alone  as  illegal,  and  in  terms  do  not  impugn 
either  the  treaty  or  the  award;  and  it  is  merely  a  matter  of  inference 
or  argument  that  either  of  these  was  assailed,  or  any  right  properly 
claimed  under  them  overruled.  But  it  is  true  the  court  held  tbat 
Oliver's  executors,  rather  than  the  appellant,  were  entided  to  the  fund 
furnished  by  Mexico,  and  long  subsequent  to  Mina's  contract;  but  in 
coming  to  that  conclusion,  they  seem  to  have  been  governed  by  their 
views  as  to  their  own  laws  and  the  principles  of  general  jurisprudence. 
The  treaty  or  award  contained  nothing  as  to  the  point  whether  Gill  or 
Oliver's  executors  had  the  better  right  to  this  share,  but  only  that  the 
Mexican  Company  and  their  legal  representatives  should  receive  the 
fund.     This  last  the  court  did  not  question. 

But  who  was  the  legal  representative  of  Lyde  Goodwin's  share? 
Who,  by  insolvencies,  sales,  or  otherwise,  had  become  entided  to  it? 

That  was  tiie  question  before  the  court,  and  the  one  they  settled; 
and  in  deciding  that  they  overruled  the  claim  of  Gill  to  be  so,  by 
virtue  of  any  authority  in  the  treaty  or  award;  and  in  saying  that  the 
fund  should  go  to  Oliver's  executors,  as  best  entitled,  rather  than  Gill, 
they  did  it  under  their  own  State  laws. 

It  is  a  general  rule  for  the  State  tribunals,  and  not  the  commissioners, 
to  settle  any  conflict  between  different  claimants;  and  the  usage,  when 
disputes  exist,  is  not  for  commissioners  to  go  further  than  act  on  the 
validity  of  the  claim,  and  decide  besides  the  superior  rights  of  one  of 
the  claimants.  Frevall  v.  Bache  et  al.,  14  Peters,  95;  Comegys  v. 
Vasse,  1  Peters,  212;  Sheppard  v.  Taylor  et  al.,  5  Peters,  710, 


I 


29 

It  is  true,  that  the  opinion  given  in  the  State  court  in  support  of  its 
judgment  is  not  entirely  free  from  some  grounds  for  misconception,  yet 
the  judgment  itself  appears  right,  and,  if  erroneous,  resting  as  it  does 
wholly  on  the  State  laws,  it  is  not  competent  for  us,  under  this  writ 
of  error,  to  reverse  it.  We  can  reverse  it  only  when  wrong,  and 
wrong,  too,  for  deciding  improperly  against  some  claim  under  a  United 
States  law  or  treaty. 

This,  I  think,  it  has  not  done.  In  short,  the  whole  real  truth 
appears  to  be,  that  the  State  court  considered  the  Mina  contract  in  1S17 
as  a  violation  of  the  neutrality  act  of  1794;  and  therefore,  when  LydS 
Goodwin  failed  in  the  same  year,  and  went  into  insolvency,  that  his 
share  in  the  contract,  being  illegal  and  void,  could  not  then  pass  to  his 
creditors,  or  his  trustee  in  their  behalf.  But  when  the  Mexican  govern- 
ment, about  1S25,  adopted  the  contract,  and  acknowledged  its  liability 
to  pay  those  entitled,  the  court  seems  to  have  thought  that  their  obliga- 
tion was  virtually  a  new  one.  It  occurred  after  the  insolvency,  and 
hence  seems  supposed  not  to  have  passed  to  the  creditors,  any  more 
than  did  new  property  subsequently  acquired.  (See  Insolvent  Act  of 
1805,  cli.  110,  §  2.)  Consequently,  the  commissioners  held  that  the 
creditors  and  their  trustee  were  not  entitled  to  its  benefits.  Goodwin 
could  and  did  legally  assign  to  Oliver  his  new  rights  and  new  guaran- 
tees, for  his  share  from  Mexico.  These  last  though  growing  out  of 
the  original  Mina  purchase,  were  not  a  violation  of  the  act  of  1794, — 
were  honorable,  though  not  compellable,  and  were  not  deemed  illegal 
either  by  Mexico  or  the  government  of  the  United  States,  or  the  com- 
missioners, or  the  State  court. 

Again,  under  the  State  laws  doubts  seemed  to  arise,  (in  deciding 
on  which  was  the  proper  claimant,)  whether  the  original  trustee  was 
not  duly  appointed  in  1817,  and  could  not  legally  assign  this  claim, 
if  it  passed  to  him  tlicn  or  afterwards,  as  he  attempted  to  pass  it  to 
Oliver,  rather  than  considering  it  as  belonging  to,  or  vesting  in.  Gill, 
the  ajipellani,  who  was  not  appointed  trustee  till  1825,  and  then  in  a 
manner  somewhat  questionable.  (4  Gill  dfc  Johns.  892.)  That,  how- 
ever, was  likewise  a  point  arising  exclusively  under  the  State  laws,  and 
which  we  arc  not  authorized  to  decide  in  this  writ  of  error. 

It  is  for  reasons  like  these,  that,  in  n)y  opinion,  tlx;  judgment  in  the 
Stale  court,  so  far  as  it  related  to  any  claim  set  up  and  supposed  to  i)e 
overruled  under  any  authority  derived  from  the  United  States,  is  within 
our  jinisdiction;  but  that  the  State  court  did  not  improjx'ily  overrule 
any  such  claim  so  set  up,  and  hence  that  the  judgment  in  lln'  Slate 
cuiMt  oii'^ht  {()  I)(;  afllrmed. 

Order. 

This  cause  came  on  to  i)e  heard  on  the  transcript  of  the  record  from 
the  Court  of  Appeals  for  the  Western  Shon-  of  Maryland,  and  was 
argued  by  counsc;!.  On  cousidcraiion  whereof,  it  is  now  \\r\r  ordered, 
adjudged,  and  decreed  by  this  coml,  that  this  cause  be,  and  iIm'  same 
is  hereby  dismissed,  for  the  want  of  jurisdiction. 
5 

Tliis  rnsH  is  rppnrtfd  in  II  Il'iwnrfl,  pnirc  .'iW. 


30 

SUPREME  COURT  OF  THE  UNITED  STATES. 

December   Term,    185  1. 


Nathaniel  Williams,  as  permanent  Trustee 
for  the  Creditors  of  James  Williams,  an  In- 
solvent Debtor,  Plaintiff  in  Error. 

vs. 

Charles    Oliver,   Robert    M.    Gibbes  and 
Thomas  Oliver,  Executors  of  Robert  Oliver, 
and   John  Glenn,   and    David    M.   Ferine, 
Trustees. 
Mr.  Justice  NEliSON  dehvered  the  opinion  of  the  Court. 

This  case  is  not  distinguishable  from  the  case  decided  at  the  last 
term  of  Gill  vs.  Oliver's  Executors,  and  which  was  dismissed  for  want 
of  jurisdiction. 

It  is  reported  in  11  How.  529.  That  case  involved  the  right  to  the 
share  of  Lyde  Goodwin  as  a  member  of  the  "  Baltimore  Mexican 
Company  "  in  the  fund  that  had  been  awarded  to  the  members  of  that 
Company  by  the  Commissioners  under  the  convention  of  1839  with 
Mexico.  Gill  claimed  it  as  permanent  trustee  under  the  insolvent  laws 
of  Maryland,  the  benefit  of  which  Goodwin  had  obtained  in  1817  on 
the  assignment  of  all  his  property  for  the  use  of  his  creditors. 

The  executors  of  Oliver  claimed  the  right  of  Goodwin  to  this  fund 
under  an  assignment  made  by  himself  30th  May,  1829. 

The  money  awarded  by  the  Commissioners  to  this  Company  under 
the  treaty,  had,  by  the  agreement  of  all  parties  claiming  an  interest  in 
the  same,  been  deposited  in  the  Mechanic's  Bank  of  Baltimore  to  be 
distributed  according  to  the  rights  of  the  respective  parties  claiming  it. 

The  Court  of  Appeals  of  Maryland  decided  against  the  right  of  Gill, 
as  the  permanent  trustee  of  Goodwin,  under  the  insolvent  proceedings, 
and  in  favor  of  the  right  of  the  Executors  of  Oliver. 

The  case  was  brought  here  by  writ  of  error  for  review,  and  was 
dismissed  a-s  we  have  stated  for  want  of  jinisdiction. 

The  Court  of  Appeals  of  Maryland  had  decided  against  the  right  of 
Gill  on  the  ground,  that  the  contract  made  by  the  "  Baltimore  Mexican 
Company"  with  General  Mina  in  1816,  by  which  means  were  furn- 
ished him  to  carry  on  a  military  expedition  against  the  territories  and 
dominions  of  the  King  of  Spain,  a  foreign  Prince  with  whom  the 
United  Stales  were  at  peace,  was  in  violation  of  our  neutrality  act  of 
1794,  and  consequently  illegal,  and  void;  and  could  not  be  the  founda- 
tion of  any  right  of  property,  or  interest  existing  in  Goodwin  in  1817, 
the  date  of  the  insolvent  proceedings,  and  hence,  that  no  interest  in 
the  subject-matter  passed  to  the  permanent  trustees  seUing  up  a  title 
under  them. 

After  the  revolutionary  party  in  Mexico  had  achieved  their  indepen- 
dence, and  about  the  year  1825,  the  public  authorities  under  the  new 


31 

government  recognized  this  claim  of  the  Baltimore  Company,  as  valid 
and  binding  upon  it,  and  as  sucii  it  was  brought  before  the  board  of 
Commissioners,  under  the  convention  of  1839,  and  allowed. 

It  was  not  denied  on  the  argument,  and,  indeed,  coidd  not  have 
been  successfully,  that  the  contract  with  General  Mina  in  1816,  was 
illegal  and  void,  having  been  made  in  express  violation  of  law:  and 
hence  that  no  interest  in,  or  right  of  property  arising  out  of  it,  legal  or 
equitable,  could  pass,  in  1817  the  date  of  the  insolvent  proceedings  of 
Goodwin,  (o  the  trustee  for  the  benefit  of  his  creditors.  But,  it  was 
urged,  that  the  subsequent  recognition,  and  adoption  of  the  obligation 
by  the  new  government,  had  relation  back,  so  as  to  confirm  and  legal- 
ize the  original  transaction  and  thereby  give  operation  and  efTect  to 
the  title  of  the  trustee  at  the  date  mentioned. 

And  upon  this  ground  it  was  insisted  that  the  decision  of  the  Court 
below  denying  the  right  of  Gill,  the  permanent  trustee,  was  a  decision 
against  a  riglit  derived  under  (he  treaty,  and  award  of  the  Commis- 
sioners, which  therefore  brought  the  case  within  he  25th  section  of  the 
judiciary  act. 

Undoubtedly  upon  this  aspect  of  the  case,  and  assuming  that  there 
was  any  well  founded  ground  to  be  found  in  the  record  for  maintain- 
ing it,  jurisdiction  might  have  been  very  properly  entertained:  and  the 
question  as  to  the  efTect  of  the  recognition  of  the  obligation  by  Mexico, 
and  award  under  the  treaty  in  pursuance  thereof  upon  the  right  claimed 
by  the  trustee  under  the  insolvent  proceedings  examined  and  decided. 
The  decision  below,  in  (his  aspect  of  the  case,  must  have  involved  the 
effect  and  operation  of  the  treat}'^  and  award  of  the  Commissioners 
imder  it. 

But,  a  majority  of  the  Court  were  of  opinion  tiiat  no  such  question 
existed  in  the  case,  or,  was  decided  by  (he  court  below:  and  tha(  (he 
only  one  properly  arising,  or  that  was  decided,  w;is  \\\o  one  growing 
out  of  the  conUiut  with  General  Mina  of  ISK),  and  of  the  elU'ct  and 
operation  to  be  given  to  it  lurder  (he  insolvent  laws  of  Maryland. 

'I'Ik;  money  awarded  to  the  Mexican  Company  was  a  fund  in  court 
and  had  been  brought  in  by  the  consent  of  all  ])arties  concerned  for 
distribution  according  to  their  respective  rights.  Tlx;  plainliH'  in  error 
clain)ed  the  share  of  Goodwin  under  the  insolvent  proceedings  of  1817 
as  trustee  for  the  creditors  through  the  contract  with  Mina — the  dcfcud- 
ants  by  virtue  of  an  assigmneut  from  (ioodwin  himself  in  1829  after 
Mexico  had  recojjnized  and  acknowledfjed  thi-  iLiim  as  valid.  The 
money  bad  been  awarded  (o  cer(ain  [)ersons  "  in  trust  for  whom  it 
may  coucern  "  without  undertaking  to  settle  the  rights  of  (he  several 
claimants.  The  court  in  giving  eflect  and  oiieration  (o  (he  insolvent 
laws  of  Maryl.'uid  as  to  the  vesting  of  (Im;  jii(jperty  and  estate  of  (he 
in.solvent,  in  the  hands  of  (he  (rus(ee  for  the  benerii  of  the  creditors, 
held,  that  no  interest  or  riiiht  could  be  daiuied  luidei  them  ihinugh 
(he  contract  of  l8Hi,  i)Ut  that  the;  right  of  (ioodwin  (o  (he  finid  |)asscd 
by  his  assigmneut  in  1829  to  (he  defendan(s. 

Mr.  .fustice  Grier  in  delivering  (he  opinion  of  (he  majority  of  the  cour(, 
speakiu!^  of  (hfit  deci<iou,  observes,  that  in  deciiliui,'  the  quoliou  the 
coiu(d  of  Maryland   have  put  no  construction  on  the  treaty  m  awaid 


32 

asserted  by  one  party  to  be  the  true  one  and  denied  by  tlie  other.  It 
was  before  them  us  a  fact  only,  and  not  for  the  purpose  of  construction. 
Whether  this  money  paid  into  the  court  under  the  award,  and  first 
acknowledged  by  Mexico  as  a  debt  in  1825  existed  as  a  debt  transfera- 
ble by  the  Maryland  insolvent  laws  in  1817,  or  whether  it,  for  the  first 
time,  assumed  the  nature  of  a  chose  iti  aciio?i  transferable  by  assign- 
ment after  1825,  when  acknowledged  of  record  by  Mexico  and  passed 
by  the  assignment  of  Lyde  Goodwin  to  Robert  Oliver,  was  a  ques- 
tion wholly  </e/«or5  the  treaty  and  award,  and  involving  the  construction 
of  the  laws  of  Maryland  only,  and  not  of  any  treaty  or  statute  or  com- 
mission under  the  United  States.  And  Mr.  Justice  Woodbury  who 
dissented  on  the  question  of  jurisdiction,  observes,  that  the  claim  so  far 
as  it  regards  the  enforcement  of  the  treaty  with  Mexico,  does  not  seem 
to  have  been  overruled  in  terms  by  the  State  Court.  That  court  did 
not  decide  that  the  treaty  was  corrupt  or  illegal  or  in  any  way  a  nullity, 
when  they  held  that  the  original  contract  violated  the  laws  of  neutrahty. 
So  far,  too,  as  regards  the  award  made  by  the  commissioners,  that  the 
Baltimore  Mexican  Company,  and  their  legal  representatives  had  a 
just  claim  under  the  treaty  for  the  amount  awarded,  it  was  not  over- 
ruled at  all. 

Again,  he  observes,  that  all  must  concede,  that  the  State  Court 
speaks  in  language  against  the  Mina  contract  alone,  as  illegal,  and  in 
terms  do  not  impugn  either  the  treaty  or  the  award  ;  and  it  is  merely 
a  matter  of  inference  or  argument  that  either  of  these  was  assailed,  or 
any  right  properly  claimed  under  them  overruled.  But  it  is  true,  the 
Court  held  that  Oliver's  executors,  rather  than  the  appellant,  were  en- 
tided  to  the  fund  furnished  by  Mexico,  and  long  subsequent  to  Mina's 
contract;  but  in  coming  to  that  conclusion  they  seem  to  have  been 
governed  by  their  own  views  as  to  their  own  laws  and  the  principles  of 
general  jurisprudence.  'I'he  treaty  or  award  contained  nothing  as  to 
the  point  whether  Gill  or  Oliver's  executors  had  the  better  right  to  his 
share;  but  only  that  the  Mexican  Company  and  their  legal  representa- 
tives should  receive  the  fund.     This  last  the  court  did  not  question. 

The  decision  of  the  court  below,  therefore,  not  involving  the  validity 
of  the  treaty,  or  award  of  the  commissioners,  or  lawfulness  or  character 
of  the  fund  ;  but,  simply,  the  right  and  tide  to  the  respective  shares 
claimed  in  it,  after  the  fund  had  been  paid  over  by  the  government, 
and  brought  into  court  for  distribution  accordintr  to  the  agreement  of  all 
concerned,  and  which  distribution  depended  upon  the  laws  of  the 
State,  a  majority  of  the  court  taking  this  view  of  the  case,  held,  that 
there  was  a  want  of  jurisdiction  and  dismissed  the  writ  of  error;  and 
that  the  decision  whether  right  or  wrong  could  not  be  the  subject  of 
review  under  the  25th  section  of  the  Judiciary  Act,  as  it  involved  no 
question  either  directly  or  by  necessary  intendment  arising  upon  the 
treaty  or  award  or  connected  with  the  validity  of  either;  and  if  this 
court  were  right  in  the  view  thus  taken  of  the  case  there  can  be  no 
doubt  as  to  the  correctness  of  the  conclusion  arrived  at.  A  different 
view  of  the  case  might,  of  course,  lead  to  a  different  conclusion. 

Now,  in  the  case  before  us,  the  plaintiff  in  error  claims  the  share  of 
John  Gooding,  one  of  the  members  of  the  Mexican  Company,  as  per- 


33 

manent  trustee  under  the  insolvent  laws  of  Maryland,  bavins^  been  ap- 
pointed 29ih  January,  1842,  Gooding  having  taken  the  benefit  of 
these  acts,  and  assigned  his  property  for  (he  benefit  of  the  creditors  as 
early  as  1819. 

George  Winchester  had  been  previously  appointed  provisional  trustee 
on  the  23d  June,  1819,  to  whom  all  property  had  been  assigned, 
and  on  the  2d  May,  1823,  had  been  appointed  permanent  trustee,  and 
gave  a  bond  for  the  faithful  execution  of  his  duties  without  surety,  and 
on  the  2d  April,  1825,  sold  the  interest  of  Gooding  in  this  share  to 
Robert  Oliver  under  an  order  of  sale  made  by  the  Baltimore  County 
Court  having  jurisdiction  in  the  matter  for  (he  consideration  of  two 
thousand  dollars.  And  in  1841  the  Legislature  of  Maryland  passed  a 
law  confirming  this  sale,  a  doubt  having  been  suggested  as  (o  its  va- 
lidity, for  want  of  a  surety  to  the  official  bond  of  tlie  trustee. 

In  this  state  of  the  case  the  Court  of  Appeals  of  Maryland  held  that 
the  interest  of  Gooding  in  the  Mexican  contract  did  not  pass  under  their 
insolvent  laws  (o  the  plaintiff  in  error  as  permanent  trustee,  for  the 
reasons  assigned  in  the  previous  case  of  Gill  vs.  Oliver's  executors. 
And  that  if  it  did  or  could  have  passed  under  these  laws,  it  passed  to 
Winchester  the  previous  trustee  in  connection  with  the  confirming  act 
of  the  Legislature  of  1841. 

It  is  apparent,  therefore,  if  the  decision  in  the  case  of  Gill  t\s\  Oli- 
ver's executors  involved  no  question  that  gave  to  this  court  jurisdiction 
to  revise  it  here,  as  has  already  been  decided,  none  exists  in  the  case 
before  us;  for,  as  it  respects  the  question  of  jurisdiction,  (he  two  staml 
upon  the  same  footing,  and  involved  precisely  the  same  principh^s. 

The  counsel  for  the  plaintiff  in  error  sought  to  distinguish  this  case 
from  the  previous  one,  and  to  maintain  the  jurisdiction  of  the,  argu- 
ment, upon  the  ground,  that  the  act  of  the  Legislature  of  .Maryland  of 
1841  confirming  the  authority  of  Winchester,  the  ]jernianciit  (nisler, 
was  in  contravention  of  a  provision  of  the  constitution  of  the  United 
States  as  a  ''  law  impairing  the  obligation  of  contracts." 

But,  admitting  this  to  be  so,  (which  we  do  not)  still  the  admission 
would  not  allcct  the  result.  For,  thn  decision  upon  \\\o,  |)rrvious 
branch  of  the  case,  denied  to  the  plaintiff  any  right  to  or  interest  in  the 
fund  in  question  as  claimed  under  (he  insolvent  |)rocecdings,  as  per- 
manent trustee,  and,  hence  he  was  deemed  (lisal)led  from  nmintiiiiiiiig 
any  action  founded  upon  that  claim. 

it  was  of  no  im])ortance,  therefore,  as  it  respected  (Ik^  plaintill  in  (lie 
distribution  of  the  fund,  whether  it  wasrightfidly  or  wrongfully  awarded 
to  Oliver's  executors.      lie  had   no  longer  any  interest  in   the  ([iiestion. 

In  order  to  give  jurisdiction  to  this  comt  to  revise  tln^  judgment  of  a 
S(a(c  Court   under  the  2.5th   section  of  (he  .ludiciary  Act  a  (jucstion 

must  not  only  exist  on  (he  record  actually  or  by  necessary  intend nt, 

as  mentioned  in  that  section  and  tln^  decision  of  the  court  as  there 
staled;  but  the  d(,-ei.sion  must  he  controlling  in  thr'.  dis|)osition  of  (he 
case,  or,  in  the  language  of  .some  of  the  cases  on  the.  .subject,  "  the 
judgment  of  the  Slate  Court  would  not  have  been  what  it  is,  if  there, 
had  not  heen  a  misconstruction  of  some  act  of  Congress,  or  a  decision 
against  the  validity  of  the  riixht,  title,  jjrivilegc  or  exemption  set  np 
under  it.'"     3  Peters,  292,  302;  or,  as  slated  i)V  Mr.  Justice  Slorv  in 


34 

Crowell  vs.  Randell,  (10  Peters,  392,)  where  he  reviewed  all  the 
cases,  it  must  appear  "  from  tlie  facts  stated  by  just  and  necessary  in- 
ference (hat  the  question  was  made,  and  that  the  court  below  must,  in 
order  to  have  arrived  at  the  judgment  pronounced  by  it,  have  come  to 
the  very  decision  of  that  question  as  indispensible  to  that  judgment." 
And  in  a  recent  case,  (5  How.  341,)  following  out  the  doctrine  of  the 
previous  cases,  "  It  is  not  enough  that  the  record  shows  that  the  plain- 
tiff in  error  contended  and  claimed  that  the  judgment  of  the  court  im- 
paired the  obligation  of  a  contract,  and  violated  the  provisions  of  the 
constitution  of  the  United  States:  and  that  this  claim  was  overruled 
by  the  court:  but,  it  must  appear  by  clear  and  necessary  intendment, 
that  the  question  must  have  been  raised,  and  must  have  been  decided 
in  order  to  induce  the  judgment." 

It  is  not  intended,  nor  to  be  understood  from  these  cases,  that  the 
question  thus  material  to  the  decision  arrived  at,  must  be  confined  ex- 
clusively and  specially  to  the  construction  of  the  treaty,  act  of  Con- 
gress, (fcc,  in  order  to  give  the  jurisdiction,  as  this  would  l3e  too  narrow 
a  view  of  it.  Points  may  arise  growing  out  of  and  connected  with  the 
general  question,  and  so  blended  with  it  as  not  to  be  separated,  and,  there- 
fore, falling  equally  within  the  decision  contemplated  by  the  25th  sec- 
tion. The  cases  of  Smith  vs.  the  State  of  Maryland  6  Cranch,  281, 
and  Martin  vs.  Hunter's  lessee,  1  Wheat,  305,  '.i55,  afford  illustrations 
of  this  principle. 

Now,  as  the  decision  of  the  question  involving  the  right  and  title 
of  the  plaintiff  in  error  to  Gooding's  interest  in  this  fund  under  the 
insolvent  proceedings  was  against  him  in  the  court  below,  and  was 
one,  which,  in  our  judgment,  involved  only  a  question  of  State  law, 
and,  therefore,  not  the  subject  of  revision  here,  and  was  conclusive 
upon  his  rights,  and  decisive  of  the  case,  it  follows  that  we  have  no 
jurisdiction  within  the  principle  of  the  cases  to  which  we  have  referred. 
For,  the  determination  of  the  court  upon  the  validity  of  the  act  of  the 
Legislature  of  1841  in  no  way  controlled  the  judgment  at  which  the 
court  arrived  as  respected  the  plaintiff.  That  turned  upon  the  de- 
cision as  to  the  right  of  the  plaintiff  to  the  fund  under  the  insolvent 
proceedings,  as  permanent  trustee  of  Gooding,  and  whatever  might 
have  been  the  opinion  of  the  court  upon  the  other  question,  the  result 
of  their  judgment  would  have  been  the  same. 

For  the  reason,  therefore,  that  this  case  falls  directly  within  the  de- 
cision of  Gill  vs.  Oliver's  Executors,  and  is  not  distinguishable  from  it, 
the  case  must  take  the  same  direction,  and  be  dismissed  for  want  of 
Jurisdiction. 

Order. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record  from 
the  Court  of  Appeals  of  the  State  of  Maryland  for  the  Western  Shore, 
and  was  argued  by  counsel.  On  consideration  whereof,  it  is  now  here 
ordered  and  adjudged  by  this  Court,  that  this  cause  be,  and  the  same 
is  hereby  dismissed,  for  the  want  of  jurisdiction. 


This  case  is  reported  in  12  Howard,  page  111, 


35 


SUPREME  COURT  OF  THE  UNITED  STATES. 

December  Term,  1851. 


Nathaniel    Williams,    as    permanent" 
Trustee  for  the  Creditors  of  John  Good- 
ing, an  Insolvent  Debtor, 
vs. 

Charles  Oliver,  Robert  M.  Gibbes,  and 
Tiiomas    OHver,  Executors  of  Robert 


'  J 


Oliver,  and  John  Glenn  and  David  M. 


Ferine,  7^rustees. 

Mr.  Justice  NELSON  delivered  the  opinion  of  the  Court. 

This  case  involves  the  same  principles  as  the  case  of  Williams'  per- 
manent trustee  of  James  Williams,  already  decided  :  and  we  refer  to 
the  opinion  there  delivered  for  our  decision  in  this  case. 

The  case  is  dismissed  for  want  of  jurisdiction. 

Order. 

This  cause  came  on  (o  be  heard  on  the  transcript  of  the  record  from 
the  Court  of  Appeals  of  the  State  of  Maryland  for  the  Western  Shore, 
and  was  argued  Jjy  counsel.  On  consideration  wliereof,  it  is  now  line 
ordered  and  adjudged  by  this  Court,  that  this  cause  be,  ;uul  iIk,-  .same 
id  hereby  dismissed,  for  the  want  of  jurisdiction. 


This  case  is  reported  m   Vi  Ilowiird,  page   l:i.j. 


36 

SUPREME  COURT  OF  THE  UNITED  STATES. 

December   Term,    1852. 


John  Deacon,  Appellant, 

vs. 

Charles  Oliver  and  Robert  M.  Gibbes, 

Executors  of  Robert  Oliver,  deceased. 


1 


Mr.  Justice  GRIER  delivered  the  opinion  of  the  court. 

Without  attempting  to  give  a  history  of  the  facts  of  this  case,  as  ex- 
hibited in  the  pleadings  and  proofs,  or  noticing  all  the  objections  of  the 
equity  of  the  bill,  we  think  there  are  two  of  its  charges  or  allegations, 
on  which  its  whole  equity  rests,  and  which  the  complainant  has  failed 
to  substantiate. 

1,  That  there  were  in  the  hands  of  Robert  Oliver  at  the  time  the 
attachment  was  laid,  any  chattels,  rights,  or  credits  of  Lyde  Goodwin, 
"which  were  bound  by  said  attachment." 

2.  That  Robert  Oliver  was  guilty  of  falsehood  or  fraudulent  conceal- 
ment of  facts,  in  his  answers  to  the  interrogatories  proposed  to  him  as 
garnishee  in  the  attachment. 

In  1816,  and  previous  to  his  insolvency,  Lyde  Goodwin  had  become 
a  shareholder  in  the  Baltimore  Mexican  Company,  to  the  extent  of  one 
ninth  part.  This  company  had  furnished  means  to  General  Mina  to 
fit  out  a  warlike  expedition  against  MexictJ,  then  a  dependency  of 
Spain.  The  expedition  of  Mina  had  failed,  and  he  had  perished  with 
it.  This  transaction  of  th^ company  was  illegal,  and  punishable  as  a 
misdemeanor,  with  fine  and  imprisonment.  The  contract  was  there- 
fore void  in  law,  and  could  not  be  the  foundation  of  any  debt,  nor 
could  the  stock  thus  created  be  treated  in  law  as  a  thing  of  value;  and 
from  the  uncertainty  of  its  future  prospects,  its  value  in  the  market 
was  little  better.  It  was  merely  possible  that  Mexico,  if  successful  in 
her  struggle  for  independence,  might,  at  some  future  day,  assume  the 
payment  of  the  debts  contracted  by  Mina,  and  if,  as  it  was  possible,  or 
perhaps  probable,  that  at  some  day  still  further  in  the  future  the  pay- 
ment may  be  obtained.  Goodwin's  title  in  this  possibility  or  expec- 
tancy, or  whatever  it  might  be  called,  was  supposed  to  have  passed  to 
Brown,  his  assignee,  under  the  insolvent  act.  Afterwards,  in  1824, 
Mexico  having  achieved  her  independence,  passed  a  decree  promising 
to  acknowledge  *'  the  debts  that  may  be  proven  to  have  been  con-  i 
traded  for  the  service  of  the  nation  by  the  Generals  declared  bene 
meritos  de  la  patria,^^  of  whom  Mina  was  one.  This  renewed  the 
hopes  of  the  company,  that  possibl}'-  something  might  be  recovered 
hereafter  on  this  pledge  of  the  Mexican  government;  and  Robert  Oliver 
was  appointed  the  attorney  on  the  part  of  the  company  to  prosecute 
their  claim.  Lyde  Goodwin  being  in  actual  want  of  the  means  of, 
subsistence,  persuaded  Robert  Oliver  to  advance  him  the  sum  of  twoj 


37 

thousand  dollars,  and  take  a  transfer  from  Brown,  his  insolvent  trustee 
of  this  claim,  as  security. 

In  this  situation  of  affairs,  the  attachment  of  Baring,  Brothers  6c 
Co.  was  served  on  Robert  Oliver,  as  garnishee  of  Lyde  Goodwin,  in 
1827.  Now  it  is  admitted  that  Oliver  was  a  creditor  of  Lyde  Goodwin, 
and  not  a  debtor.  His  power  of  attorney  put  him  in  possession  of 
nothing  which  could  be  attached  as  the  property  of  Goodwin.  The 
insolvent  assignment  was  supposed  to  have  vested  Goodwin's  interest 
in  this  expectancy,  in  Brown.  If  it  did  not  do  so,  as  has  since  been 
decided,  Oliver  had  no  title  to  Goodwin's  claim.  And  if  it  did,  and 
if  Oliver  held  it  merely  as  a  security  for  the  sum  advanced  by  him, 
the  equitable  assignment  taken  as  such  security,  was  his  own;  it  was 
but  an  instrument  to  obtain  satisfaction  for  his  debt;  it  conferred  noth- 
ing but  a  right  in  equity.  Whether  it  was  valid  or  invalid,  absolute  or 
defeasible,  it  did  not  constitute  him  a  debtor  of  Lyde  Goodwin,  or  put 
him  in  possession  of  any  of  his  credits  or  effects,  so  as  to  subject  him 
to  an  attachment  as  Goodwin's  garnishee.  It  was  not  till  after  the 
death  of  Robert  Oliver,  and  more  than  ten  years  after  the  attachment 
of  complainant  was  discontinued,  that  the  United  States  made  the 
Convention  of  April,  1839,  with  Mexico,  under  which  Commissioners 
were  appointed,  before  whom  this  claim  of  the  Baltimore  Company 
was  proved,  and  acknowledged  by  Mexico  as  a  just  debt.  Then  for 
the  first  time,  this  uncertain  claim  or  equity,  assumed  the  form  of  a 
credit,  and  an  existence  as  a  legal  chose  in  action.  But  in  that  char- 
acter it  never  existed  in  the  hands  of  Robert  Oliver.  If,  at  the  time 
the  attachment  was  served  on  him,  the  claim  of  Lyde  Goodwin  had 
existed  as  a  debt  due  him  by  a  citizen  of  Maryland,  and  Oliver  held  an 
ecjuitable  transfer  either  absolute  or  defeasible,  it  is  abundantly  evident 
that  the  proper  person  to  be  made  garnishee  in  an  attachment,  would 
have  been  the  debtor,  not  the  equitable  claimant  of  the  debt.  He  has 
but  an  equity  or  a  bare  right,  but  whatever  it  is,  it  is  his  own,  and  his 
claim  is  in  hostility  both  to  the  plaintiff  and  defendant  in  the  attach- 
ment. 

The  whole  foundation  of  (he  complainant's  equity  in  this  bill  rests 
on  the  averment,  that  the  interest  of  Lyde  (ioodwin,  whatever  it  was, 
in  this  Mexican  claim, ''was  bound  by  (he  a((achment  laid  in  the 
hands  of  Robert  Oliver,  as  garnishee."  The  Merwin  claim  not  hav- 
ing been  assigned  till  after  tin;  attachment  was  withdrawn,  need  not 
be  noticed.  The  decision  of  this  point  against  the  averment  of  the  bill, 
would  dispose  of  the  case. 

But  a-s  wc  think  the  charges  made  in  (he  bill  against  Roiu-rt  Oliver, 
of  false  and  fraudiilenl  r«»n<;ealment,  have  not  been  sustaiiieij,  ii  is  due 
to  the  mf;mory  of  one  who  always  sustained  a  high  rej)Ulation  as  a 
merchant  and  man  of  honor,  to  notice  this  point. 

It  must  be  remembered  (hat  the  purpose  of  the  interrogatories  was 
to  ascertain  whether  Oliver  li.td  in  his  lintids  any  rredits  or  e (lee Is  of 
Lyde  Goodwiti,  siil)ject  to  attaelmienl ;  and  also  that  Brown,  the  insol- 
venl  assignee  of  (ioodwin,  was  supposed  (o  have  had  (he  title  to  GoojI- 
win's  in(erest  vested  in  him.  The  legidmate  inquiry  was,  therefore, 
not  whether  Brown  had  al)use(l  his  trust,  by  sellinjjr  or  mortgaging  (he 
6 


38 

trust  property  for  the  benefit  of  Goodwill;  or  whether  Oliver's  claim 
under  the  assignee  was  valid  or  not.  This  inquiry  was  wholly  irrele- 
vant in  the  investigation,  under  the  attachment  proceeding.  Nor  was 
Oliver  bound,  in  that  investigation,  to  make  any  disclosure  of  the  strength 
or  weakness  of  his  own  title,  which  was  hostile  to  that  of  the  plaintiff. 
The  discovery  sought,  was  not  of  Oliver's  equities,  but  of  Goodwin's 
assets.  Oliver's  answers  to  the  interrogatories  were  drawn,  no  doubt, 
by  learned  counsel,  fully  aware  of  the  nature  of  the  proceedings,  and 
the  rights  of  the  parties  under  them.  The  answers  were  strictly  true 
to  the  letter.  The  garnishee  had  not  in  his  hands,  "  any  funds,  evi- 
dences of  debt,  stocks,  certificates  of  stock,  belonging  to  Lyde  Goodwin, 
nor  any  acknowledgment  by  the  Mexican  government  to  said  Lyde 
Goodwin,"  on  which  the  attachment  could  be  laid.  What  claims  or 
securities  he  himself  had  as  a  creditor  of  Goodwin,  the  plaintiff  in  that 
proceeding  had  no  right  to  inquire,  nor  was  Oliver  bound  to  answer. 
If  he  had  nothing  which  the  plaintiff  could  attach,  it  was  no  fraud  on 
plaintiff  to  keep  his  own  counsel,  and  make  no  disclosure  as  to  the 
nature  of  his  own  securities. 

The  decree  of  the  Circuit  Court  is  therefore  affirmed. 


Order. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record  from 
the  Circuit  Court  of  the  United  States  for  the  District  of  Maryland, 
and  was  argued  by  counsel.  On  consideration  whereof,  it  is  now  here 
ordered,  adjudged,  and  decreed,  by  this  court,  that  the  decree  of  the 
said  Circuit  Court  in  this  cause  be,  and  the  same  is  hereby  affirmed, 
with  costs. 


This  case  is  reported  in  14th  Howard,  page  610. 


I 


39 


DECREES  OF  THE  CIRCUIT  COURT  OF  THE 

UNITED  STATES  FOR  THE  DISTRICT 

OF  MARYLAND. 


Circuit  court  of  the  U.  S.,  April  term,  1851, 
Deacon 


Deacon  1 

vs.  C 

Oliver's    Ex'rs.  3 


This  [cause]  came  on  to  be  heard  at  this  term  and  was  argued  b)'- 
counsel;  and  thereupon,  upon  consideration  (hereof,  it  is  ordered,  ad- 
judged, and  decreed,  that  the  bill  of  the  complainant  be  dismissed  with 
costs  to  be  taxed  by  the  register. 

R.  B.  TANEY, 
U.  S.  HEATH. 


In  the  circuit  court  of  the  United  Slates  for  (he  district  of  Maryland. 

Charles  H.  McBlair,  administrator") 
of  Lyde  Goodwin,  j 

vs.  ^In  cf|uity. 

RonERT  M.  GiBBES  and  Charles  Oli-   ( 
ver,  executors  of  Robert  Oliver.        J 

This  cause  standing  ready  for  hearing  and  being  submitted,  (he 
counsel  for  the  parties  were  heard,  and  the  proceedings  read  and  con- 
sidered. 

It  id  (hereupon,  this  third  day  of  December,  in  the  year  eighteen 
hundred  and  fifty-three,  by  this  court  adjudgetl,  ordered,  and  decreed 
limt  the  bill  of  the  complainant  be,  and  the  same  is  hereby  dismissed; 
and  that  (he  complainant  pay  (lie  defendants  (heir  costs  of  this  suit,  to 
be  (axed  by  the  clerk. 

R.  ]}.  TANEY, 

VVrLLTAMF.  (JILES. 


40 


In  the  circuit  court  of  the  United  Slates  for  the  district  of  Maryland. 

John  S.   Williams,  administrator  of") 
James  WiUiams,  j 

vs.  yln  equity, 

Robert  M.  Gibbes  and  Charles  Oli- 
ver, executors  of  Robert  Oliver. 

This  cause  standing  ready  for  hearing  and  being  submitted,  the 
counsel  for  the  parties  were  heard,  and  the  proceedings  read  and  con- 
sidered. 

It  is  thereupon,  this  third  day  of  December,  in  the  year  eighteen 
hundred  and  fifty-three,  by  this  court  adjudged,  ordered,  and  decreed 
that  the  bill  of  the  complainant  be,  and  the  same  is  hereby  dismissed; 
and  that  the  complainant  pay  the  defendants  their  costs  of  this  suit, 
to  be  taxed  by  the  clerk. 

R.  B.  TANEY, 
WILLIAM  F.  GILES. 


In  the  circuit  court  of  the  United  States  for  the  district  of  Maryland, 


John   Gooding,  jr.,  administrator  of^ 
John  Gooding,  | 

vs.  VIn  equity. 

Robert  M.  Gibbes  and  Charles  Oli- 
ver, executors  of  Robert  Oliver. 


'J 


This  cause  standing  ready  for  hearing  and  being  submitted,  the 
counsel  for  the  parties  were  heard,  and  the  proceedings  read  and  con- 
sidered. 

It  is  thereupon,  this  third  day  of  December,  in  the  year  eighteen 
hundred  and  fifty-three,  by  this  court  adjudged,  ordered,  and  decreed 
that  the  bill  of  the  complainant  be,  and  the  same  is  hereby  dismissed ; 
and  that  the  complainant  pay  the  defendants  their  costs  of  this  suit,  to 
be  taxed  by  the  clerk. 

R.  B.  TANEY, 
WILLIAM  F.  GILES. 


41 

SUPREME  COURT  OF  THE  UNITED  STATES. 

December    Term,    1854. 


Charles  H.  McBIair,  Adminisirator  of 
Lyde  Goodwin,  deceased,  appellant, 
vs. 

Robert  M.  Gibbes  and  Charles  Oliver, 
HxeciiiorsofRobert.  Oliver,  deceased. 


Appeal  from  the  circuit  court 
of  the  United  States  for  the 
district  of  Maryland. 


Mr.  Jusiice'NELSON  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  of  the  circuit  court  of  the  United 
States  for  the  district  of  Maryland. 

The  bill  was  filed  by  the  administrator  of  Lyde  Goodwin  ag-ainstthe 
executors  of  Robert  Oliver,  to  recover  (he  proceeds  of  a  share  in  an 
association  called  the  Baltimore  Company,  which  had  a  claim  against 
the  Mexican  government,  that  was  allowed  under  the  convention  of 
1839,  "  for  the  adjustment  of  claims  of  citizens  of  the  United  States 
against  the  Mexican  republic."  The  claim  of  the  company  was 
fotmded  on  a  contract  with  General  Mina,  in  1816,  for  advances  and 
supplies  in  fitting  out  a  military  expedition  against  the  dominions  of 
the  King  of  Spain.  The  bill  also  sought  to  recover  a  commission  of 
five  per  centum,  which  the  members  of  the  company  had  agreed  to 
give  to  (ioodwin  for  his  services  as  agent  in  soliciting  the  claim 
against  Mexico.  Tlie  share  and  commissions,  as  charged,  amount  lo 
.^♦iT,:«7  15. 

The  executors  of  Oliver  set  up  a  right  to  retain  the  ftuul  lor  the, 
benefit  of  the  estate,  under  and  by  virtue  of  a  jturcliasi^  ol  Goodwin's 
share  in  this  company,  and  also  of  his  right  lo  the  commissions,  by 
their  tesialor,  in  18'^9.  'i'he  [iiir(li;is»!  :m<l  transfer  took  place  the'JOlli 
May,  in  that  year,  fi^r  a  good  and  vidiiable  consideration. 

A  (piesiion  was  made  on  the  argument,  whether  or  not  the  assigu- 
UH-ni  (if  (joodwin  was  Muni(i<.'Uily  conipri'lieusivi!  to  include  a  right  to 
iIk-  coiiMnissious  as  well  as  (o  (lie  proceeds  of  the  share.  W'e  are  satis- 
fied thai  it  is.  The  language  is  very  broad:  "  .Ml  my  iiii(li\i(le(|  niiiih 
pari,  right,  nib.'  and  interest,  of  every  kind  whatever,  iii  ilie  claiiii  oii 
the  Governmeiii  of  Mexico,"  &.c.  Atid  again:  "  The  object  atid  iii- 
tenlion  of  ibis  agrf.'ement  is  fo  make  a  full  an<l  compleii-  iransfer  to  the 
said  Robert  Oliver,  of  all  my  right,  lille  and  iiiiere>i  aforesaid,"  *.V,c. 
'I'he  commi.ssions  were  dependent  upon  ihe  allowance  of  ilu;  claims 
of  (he  company  against  Mexi<:o,  and  of  course,  an  interest  iniiiiiaiely 
conneeled  with  tliem;  without  (be  idlowaure  of  (he  one,  the  other 
would  be  valueless. 

The  undeislantiing  of  Goodwiri  himself  ol  ibe  intention  and  ed'ect 
of  the  as^igumeiii  accords  with  (his  view,  as  derived  from  his  deposi- 
tion (aken  in  inbalf  of  (he  rlaiiii«  ol  the  foiiipany,  and  iisid  befoie  (he 


42 

hoard  of  commissioners;  and  also  from  liis  testimony  in  the  proceedings 
before  the  Baltimore  county  court,  for  the  distribution  of  the  fund 
among  the  several  claimants. 

This  share  of  Lyde  Goodwin  in  the  company,  and  his  commissions, 
have  heretofore  been  the  subject  of  consideration  in  this  court.  Tiie 
case  is  reported  in  the  1 1th  How.  529.  George  M.  Gill,  the  permanent 
trustee  of  Goodwin,  who  had  taken  the  benefit  of  the  insolvent  laws  of 
Maryland,  in  1817,  claimed  this  fund  before  the  Baltimore  county 
court  as  part  of  the  estate  of  the  insolvent,  against  the  right  and  tide  of 
the  executors  of  Oliver,  claiming  under  this  assignment  of  1829.  The 
Baltimore  county  court  held  that  the  fund  passed  by  the  insolvent  as- 
signment of  18J7  to  Gill,  the  permanent  trustee.  The  case  was  taken 
to  the  court  of  appeals  of  Maryland,  where  the  decree  was  reversed, 
and  the  fund  distributed  to  Oliver's  executors,  the  appellate  court  hold- 
ing that  the  contract  of  the  company  with  General  Mina  was  made 
in  violation  of  the  neutrahty  act  of  the  United  States,  of  1794,  and, 
being  thus  founded  upon  an  illegal  transaction,  constituted  no  part  of 
the  property  or  estate  of  the  insolvent  within  the  meaning  of  the  Mary- 
land insolvent  laws.  Gill  brought  the  case  to  this  coml  under  the  25th 
section  of  the  Judiciary  act,  for  the  purpose  of  revising  that  decision  ; 
but  the  court  dismissed  the  case  for  want  of  jurisdiction,  a  majority  of 
the  judges  holding  that  tlje  only  question  involved  in  the  decision  be- 
low was  the  true  construction  of  a  statute  of  the  State,  and  that  it 
belonged  to  the  Maryland  court  to  interpret  its  own  statutes.  Whether 
that  interpretation  was  right  or  wrong,  was  a  matter  with  which  this 
court  had  no  concern. 

Gill,  the  permanent  trustee,  having  thus  failed  to  establish  a  title  to 
the  fund  under  the  Maiyland  insolvent  laws,  the  litigation  is  again  re- 
vived respecting  the  fund,  in  behalf  and  for  the  benefit  of  the  personal 
representatives  of  Goodwin,  on  the  ground  that  the  moneys  realized 
upon  the  contract  with  General  Mina,  from  the  Mexican  government, 
is  to  be  regarded  as  a  subsequent  acquisition  of  property  by  ihe  insol- 
vent, belonging  to  his  estate,  and  to  be  dealt  with  accordingly. 

Hence  this  bill  filed  against  the  executors  of  Oliver  to  recover  pos- 
session of  the  fund.  The  defence  set  up  to  this  demand  of  the  admin- 
istrator of  Goodwin,  and  which  it  is  insisted  is  conclusive  against  him, 
is  Ihe  assignment  of  the  contract  of  General  Mina  by  Goodwin  himself 
to  Robert  Oliver  in  1829,  which  has  been  already  referred  to;  that  hav- 
ing thus  parted  with  all  his  right  or  claim  to  that  contract,  for  a  full 
and  valuable  consideration,  the  proceeds  thereof  derived  from  the 
recognition  and  fulfilment  by  the  Mexican  government  belong  to  the 
estate  of  Oliver,  and  not  to  that  of  Goodwin;  and  vested  his  executors 
with  the  equitable  right  to  receive  the  moneys,  and  which  have  been 
paid  accordingly  under  the  decree  of  the  court  of  appeals  of  Maiyland 
in  making  a  distribution  of  the  fund. 

It  is  urged,  however,  in  answer  to  this  view,  that  the  contract  with 
General  Mina  being  illegal,  the  sale  and  assignment  of  it  from  Good- 
win to  Oliver  niusi  also  be  illegal,  and  consequently  that  no  interest 
tjif-rfiii,  •■(|iiil;ibl<'  or  l'\gal,  pnss-cd  to  Oliver's  o\rcnlnr>\ 


43 

But  this  position  is  not  maintainable.  The  transaction,  out  of  which 
the  assignment  to  OHver  arose,  was  uninfected  with  any  illegaUfy. 
The  consideration  paid  was  not  only  legal  but  meritorious,  the  relin- 
quishment of  a  debt  due  from  Goodwin  to  him.  The  assignment  was 
subsequent,  collateral  to,  and  wholly  independent  of,  the  illegal  trans- 
actions upon  which  the  principal  contract  was  foimded.  Oliver  was 
not  a  party  to  these  transactions,  nor  in  any  wa\' connected  with  them. 

It  may  be  admitted  that  even  a  subsequent  collateral  contract,  if 
made  in  aid  and  in  furtherance  of  the  execution  of  one  infected  with 
illegality,  partakes  of  its  nature,  and  is  equally  in  violation  of  law;  but 
(hat  is  not  this  case.  Oliver,  by  the  assignment,  became  simply  owner 
in  the  place  of  Goodwin,  and  as  to  any  public  policy  or  concern  sup- 
posed to  be  involved  in  the  making;  or  in  the  fulHIment  of  such  con- 
tracts, it  was  a  matter  of  entire  indifference  to  which  it  belonged.  The 
assignee  took  it  liable  to  any  defence,  legal  or  equitable,  to  which  it 
was  subject  in  the  hands  of  Goodwin.  In  consequence  of  the  illegal- 
ity the  contract  was  invalid,  and  incapable  of  being  enforced  in  a  court 
of  justice.  The  fulfilment  depended  altogether  upon  the  voluntary  act 
of  Mina,  or  of  those  representing  him. 

No  obligation  existed,  except  what  arose  from  a  sense  of  ])onor  on 
the  part  of  those  deriving  a  benefit  from  the  transaction  out  of  which 
it  arose.  Its  value  rested  upon  this  ground,  and  this  alone.  The 
demand  was  simply  a  debt  of  honor.  But  if  the  party  who  might  set 
uj)  llie  illegality  chooses  to  waive  it,  and  pay  the  money,  he  cannot 
afterwards  reclaim  it.  And,  if  even  the  money  be  paid  to  a  third  per- 
son for  the  other  ])arty,  such  thirti  person  cannot  set  up  the  illegality  of 
the  contract  on  which  the  payment  has  been  made,  and  withhold  it  for 
himself.  In  Faikney  vs.  Renous,  (4  Burr.  2069,)  where  two  persons 
were  jointly  concerned  in  an  illegal  stockjobbing  business  with  a  third, 
and  a  loss  having  arisen,  one  of  them  paid  the  whole,  and  took  a  secu- 
rity from  the  other  for  his  share,  the  security  was  held  to  be  valid  as  a 
new  contract  uninfixted  by  the  original  transaction.  And  in  Pctrie  7'."^. 
llannay,  (3  T.  R.  418,)  where  one  of  the  partners,  imder  similar  cir- 
cumstances, paid  the  whole  at  the  instance  of  the  other,  he  was  allowed 
to  recover  for  the  proportionate  share.  These  cases  are  examined  and 
approved  in  Armstrong's.  Tolee,  (11  Wli.  258.) 

In  Tenant  vs.  Elliott,  (I  U.  ifc  l\  .3,)  the  defendani,  a  broker,  ef- 
fected an  insurance  for  tin;  [)laiuli(r  wliich  was  illegal,  being  in  viola- 
tion of  tbe  navigation  laws;  but  on  ;i  loss  bappening,  the  underwriters 
paid  the  money  to  the  broker,  wlio  refused  to  |)ay  it  over  to  the  insured, 
setting  up  the  illegality,  upon  wliicli  an  aciioii  (or  money  had  and 
received  was  brouLrbl.  The  |»laiiili(l'  recovered  on  ilie  trroimd  llial  llie 
imj)lied  promise  ot  the  ilelendani,  arising  out  of  llie  receipt  of  ilii-  money 
for  the  plaintif]",  was  a  n<:w  contract,  not  all'ected  by  tbe  illegality  (»f 
the  original  transaction.  The.  same  [)rineiple  wasajiplied  and  enforced 
in  the  case;  of  J-'armr-r  vs.  Ru.ssell,  (II).  p.  2'.Hj.) 

in  Tlioiiq)son  o.  Thonq)son,  (7  \'eH.  170,)  \\\r\r.  had  been  a  sale  (tf 
die  command  of  an  Mast  India  sliip  (o  iln;  defendant,  and  as  a  con- 
sideration he  siij)ulale(l  to  pay  an  ammiiy  of  J-'2'){)  to  (he  previous 
coiimiaiider  so  l<»ng  a  ;  lie    lioiild  eoiiiimii'  in  cninmaiKJ  of  (he    biji 


44 

Tliis  contract  of  sale  was  illegal.  Subsequently  the  defendant  re- 
linciuished  the  coniniand,  and  another  person  was  appointed  in  his 
place.  But  under  the  regulation  adopted  by  the  East  India  Company 
to  prevent  the  sale  of  the  commands  of  their  ships,  an  allowance  was 
made  to  the  defendant,  on  his  retiring,  of  o^''^, 540. 

The  bill  in  this  case  was  filed  for  the  purpose  of  procuring  a  decree 
for  the  investment  of  a  portion  of  this  fund  to  satisfy  the  annuity  of 
0^^200,  praying  that  the  value  of  it  might  be  ascertained  and  paid  out 
of  the  money  allowed  by  the  company. 

The  objection  made  was,  that  (he  contract  providing  for  the  annuity 
was  illegal,  and  a  court  of  equity  therefore  would  not  interfere. 

The  master  of  the  rolls,  Sir  William  Grant,  agreed  that  the  contract 
was  illegal;  he  admitted  there  was  an  equity  against  the  fund,  if  it 
could  be  reached  by  a  legal  agreement;  but  observed,  "you  have  no 
claim  to  this  money,  except  through  the  medium  of  an  illegal  agree- 
ment, which,  according  to  the  determinations,  you  cannot  support." 
"  If  the  case,"  he  further  observed,  "  could  have  been  brought  to  this, 
that  the  company  had  paid  this  into  the  hands  of  a  third  person  for  the 
use  of  the  plaintitT.  he  might  have  recovered  from  that  third  person, 
who  could  not  have  set  up  this  objection  as  a  reason  for  not  performing 
the  trust;"  ''but  in  this  instance  the  money  is  paid  to  the  party." 
"  There  is  nothing  collateral  in  respect  to  which,  the  agreement  being 
out  of  the  question,  a  collateral  demand  arises,  as  in  the  case  of  stock- 
jobbing differences." 

So,  in  Sharp  vs.  Taylor,  (^2  Ph.  Ch.  R.  801,)  the  bill  was  filed 
among  other  things  to  recover  a  moiety  of  the  freight  money,  the  whole 
of  which  had  come  into  the  hands  of  one  of  the  joint  owners.  The 
defence  set  up  was,  that  the  trade  in  which  the  vessel  had  been  en- 
gaged, and  in  which  the  freight  had  been  earned,  was  in  violation  of 
the  navigation  laws,  and  illegal.  But  Lord  Chancellor  Cottenham 
answered,  that  the  plaintiff  was  not  asking  for  the  enforcement  of  an 
agreement  adverse  to  the  provision  of  the  act  of  Parliament,  nor  seek- 
ing compensation  and  payment  for  an  illegal  voyage;  that,  he  observed, 
was  disposed  of  when  Taylor  (the  defendant)  received  the  money;  the 
plaintiff"  was  seeking  only  his  share  of  the  realized  profit. 

Again,  he  observed,  can  one  of  two  partners  possess  himself  of  the 
property  of  the  firm,  and  be  permitted  to  retain  it,  if  he  can  show  that, 
in  realizing  it,  some  provision  in  some  act  of  Parliament  has  been 
violated?  The  answer  is,  that  the  transaction  alleged  to  be  illegal  is 
completed  and  closed,  and  will  not  be  in  any  manner  affected  by  what 
the  court  is  asked  to  do  as  between  the  parties  The  difference,  he 
observes,  between  enforcing  illegal  contracts  and  asserting  title  to  the 
money  which  has  arisen  from  them,  is  distinctly  taken  in  Tenant  vs. 
Elliot,  and  Farmer  vs.  Russell,  and  recognised  by  Sir  William  Grant 
in  Thompson  vs.  1'hompson. 

These  cases  show  that  the  assignment  of  Lyde  Goodwin  to  Robert 
Oliver,  in  1829,  l)eing  collateral  to  and  disconnected  frou)  the  illegal 
transaction  out  of  which  the  Mina  contract  arose,  was  valid  and  bind- 
ing upon  Goodwin,  and  vested  in  Oliver  all  the  benefits  and  advan- 
tages, whatever  they  might  be,  derived  from  that  contract. 


45 

The  assignment  from  Goodwin  to  Oliver,  though  the  assignment  of 
an  illegal  contract — which  contract,  therefore,  imposed  no  legal  obliga- 
tion, and  rested  simply  upon  the  honor  of  the  parties — was  not  witliin 
the  condemnation  of  the  Maryland  insolvent  laws  as  expounded  by  her 
courts,  as  the  right  was  not  derived  under,  but  entirely  independent  of 
them.     Those  laws  have  no  application  to  this  assignment. 

And  further,  that  the  money  having  been  realized  by  his  executors, 
according  to  the  purpose  and  object  of  the  assignment,  becomes  a  part 
of  the  assets  of  the  estate,  which  belong  to  the  personal  representatives. 

Another  ground  may  be  briefly  stated,  which,  in  our  judgment,  is 
equally  conclusive  against  the  complainant.  The  assignment  of  1S29 
of  the  Mina  contract  not  being  tainted  with  illegality,  and  therefore 
obligatory  upon  Goodwin,  if  he  were  alive  and  claiming  the  fund 
against  the  representatives  of  Oliver,  having  parted  with  all  his  right  in 
the  subject  to  their  testator,  for  a  valuable  consideration,  would  be 
estopped  from  setting  up  any  such  claim,  and,  of  course,  his  personal 
representatives  can  be  in  no  better  situation. 

We  have  not  deemed  it  necessary  to  look  into  the  case  for  the  pur- 
pose of  ascertaining  whether  Goodwin,  at  the  time  of  the  proceedings 
in  the  Baltimore  county  court,  had  such  notice  of  them  as  required 
that  he  should  have  appeared  there  and  asserted  his  right;  and  hence, 
that  the  decree  of  that  court,  in  the  distribution  of  the  fund,  was  con- 
clusive upon  such  right.  That  question  is  unimportant,  inasmuch  as, 
in  our  opinion,  the  executors  of  Oliver  have,  independentl}'^  of  that 
ground,  established  a  complete  title  to  the  fund  in  controversy. 

We  think  the  decree  of  the  court  below  was  right,  and  shouiil  Ik; 
affirmed. 

Order. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record  from 
the  Circuit  Court  of  the  United  States  for  the  District  of  iMaryland, 
and  was  argued  b}'^  (Jounsel.  On  consideration  whereof,  it  is  now 
here  ordered,  adjudged,  and  decreed  by  this  Court,  that  the  decree 
of  the  said  (/ircuit  Court,  in  this  cause,  be,  mid  the  same  is  herrby 
affirmed  with  costs. 


SUPREME  COURT  OF  THi:  UNrPE!)  s'i\\'n:s. 

December    '1'  e  ii  m  ,    18  .')  1 . 

Charles  H.  McUlair,  Ailministrator  of 

Lyde  Goodwin,  deceased,  aj)p(^llant, 
vs. 
Robert  M.  Gibixjs  and  Charles  Oliver, 

Executors  of  Robert  ( )liver,  deceased.  ^ 

Mr.  Chief  Jiistice  TANKY. 

I  shall  stale  my  opinifin  in  this  cas<!  in  ihf  <-aHes  of  (Joudiu^'s  :i(l 
ininistrat(n-  and  \VilliamH's  achninistralor,  mh  ih<-  (hrcc  ca-'^r-j  .nr  nf.iily 
connected  and  depend  on  the  sauje  j)riucij)les.* 

•For  this  opinion  Hcr-  pnge  5. 


Appeal  from  the  cirruil  court 
of  ihe  (Inilr-d  Sljilrs  fur 
[\\v.  district  of  Maryland. 


40 

SUPREME  COURT  OF  THE  UNITED  STATES. 

December    Term,  1854. 


John  Williams,  Administrator  of  James  "^ 

Williams,  deceased,  appellant,  |  Appeal  from  the  circuit  court 

vs.  y     of  the  United  States  for  the 

Robert  M.  Gibbes  and  Charles  Oliver, 
Executors  of  Robert  Oliver,  deceased.  _ 


district  of  Maryland. 


Mr.  Justice  NELSON  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  of  the  circuit  court  of  the  United 
States  for  the  district  of  Maryland. 

The  bill  was  filed  in  the  court  below  to  recover  of  the  defendants 
the  proceeds  of  the  share  of  James  Willi-ams  in  what  is  called  the 
Baltimore  Company,  which  had  a  claim  against  the  Mexiean  govern- 
ment that  was  allowed  under  the  convention  of  1839.  The  claim  was 
similar  to  the  one  under  consideration  in  the  case  of  the  administrator 
of  Lyde  Goodwin  against  these  defendants,  just  disposed  of.  The 
proceeds  of  the  share,  as  charged,  amounts  to  $41,306  41. 

The  main  grounds  of  defence  set  up  in  this  case  are: 

1.  The  sale  of  this  share  in  the  company  to  Robert  Oliver  for  a 
valuable  consideration  by  George  Winchester,  permanent  trustee  of 
Williams,  who  had  taken  the  benefit  of  the  insolvent  act  of  Maryland 
in  1819,  which  was  made  in  pursuance  of  an  order  of  the  court  having 
jurisdiction  in  cases  of  insolvency  under  that  act.  The  sale  took  place 
on  the  2d  April,  1825. 

2.  A  decree  of  the  court  of  appeals  in  Maryland  at  the  June  term, 
1849,  affirming  a  decree  of  the  Baltimore  count}^  court,  which,  in  the 
distribution  of  the  fund  arising  from  this  claim  of  the  Baltimore  Com- 
pany, assigned  the  proceeds  of  the  share  in  question  to  the  executors 
of  Oliver. 

If  the  appellees  fail  to  maintain  their  title  to  this  fund  upon  one  or 
the  other  of  these  grounds,  then  the  right  to  the  share  of  Williams  in 
the  Baltimore  Company,  for  aught  that  appears,  still  belonged  to  him 
at  the  time  of  his  decease  in  1836,  and  passed  to  his  legal  representa- 
tives as  a  part  of  hi?  estate;  and,  although  originally  of  no  legal  value 
on  account  of  the  illegality  of  the  transaction  out  of  which  the  contract 
arose,  yet,  as  the  illegality  has  been  waived  and  the  money  realized, 
we  have  seen,  from  the  principles  stated  in  the  previous  case  of  Lyde 
Goodwin,  it  belongs  to  Williams's  administrator. 

As  it  respects  the  first  ground — the  sale  of  the  share  of  Williams  by 
the  provisional  trustee  to  Robert  Oliver  under  the  insolvent  act — we 
have  seen,  in  the  case  of  Lyde  Goodwin,  the  court  of  appeals  of  Mary- 
land held,  that  this  contract  of  the  Baltimore  Company  with  General 
Mina,  being  in  violation  of  the  neutrality  act  of  the  United  States,  of 


47 

1794,  was  so  tainted  with  turpitude  and  illegality,  it  could  not  be.  re- 
cognised under  their  insolvent  laws  as  property;  and  that  no  right  to 
or  interest  in  the  share  passed  fo  the  trustee.  And,  that  this  being  the 
construction  of  the  statute  by  the  highest  court  of  the  State,  and  which 
had  a  right  to  interpret  its  own  laws,  this  court  felt  bound  by  it  with- 
out inquiring  whether  that  interpretation  was  correct  or  not;  and,  con- 
sequently, as  Goodwin's  interest  in  the  share  did  not  pass  to  the  insol- 
vent trustee,  it  remained  in  Goodwin  himself,  and  passed  to  the  execu- 
tors of  Oliver  by  virtue  of  his  assignment  to  their  testator  in  1829. 

In  this  case  the  executors  of  Oliver  are  obliged  to  make  title  to  the 
share  in  question,  under  the  insolvent  trustee  of  Williams;  the  assign- 
ment to  Oliver,  their  testator,  having  been  made  by  the  trustee,  and 
not  by  Williams  himself.  And  it  is  now  insisted  on  behalf  of  the 
executors,  that  the  court  of  appeals  of  Maiyland  in  this  case  reversed 
their  opinion  delivered  in  the  case  of  Goodwin,  and  held  that  the  in- 
terest in  the  share  did  pass  under  the  insolvent  laws  to  the  trustee,  and 
consequently  that  the  proceeds  of  the  share  vested  in  them  under  his 
sale  and  assignment  to  their  testator  in  1825. 

Had  this  been  the  decision  of  the  court  of  appeals  in  the  case  of  the 
share  of  i^yde  Goodwin,  the  interest  and  proceeds  would  have  passed 
to  Gill,  the  permanent  trustee,  instead  of  to  the  executors  of  Oliver. 

These  results,  so  contradictory  and  inconsistent,  claimed  too  as  flow- 
ing from  the  judgments  of  the  highest  court  in  a  State,  should  not  be 
admitted  unless  compelled,  after  the  most  careful  and  deliberate  con- 
sideration. 

The  decision  in  both  cases  was  made  at  the  same  term,  June,  18-19, 
The  one  in  the  present  case  subsequent  to  that  in  the  case  of  Goodwin. 
The  court  in  their  opinion  state,  that  the  grounds  upon  which  they 
affirmed  the  judgment  in  this  case  were,  first,  for  the  reasons  assigned 
by  them  for  their  decree  in  the  previous  case  of  Oliver's  executors 
against  Gill,  permanent  trustee  of  Goodwin. 

The  grounds  for  that  decree  are  stated  in  tlie  record,  and  as  far  as 
material  are  as  follows:  '^  They  are  of  opinion  that  the  entire;  contract 
(the  Mina  contract)  upon  which  the  claim  of  the  appellee  (Gill,  the 
trustee)  is  founded,  is  so  fraught  widi  ill(;galily  :iiid  lur|)itude  as  to  be 
utterly  null  .mkI  void;  conferring  no  rights  or  ol)ligatiot)s  upon  any  of 
the  contracting  parlies,  which  can  be  sustained  or  countennnced  l»y  any 
court  of  law  or  equity  in  this  Slate;  that  it  has  no  mor.il  olilii';aiiou  to 
supf)ort  it,  and  that ,  therefore,  under  the  insolvent  laws  of  .Maryl-ind, 
such  claim  does  not  pa.ss  to  or  vest  in  the  trustee  of  an  insolveiii  jnii- 
(ioner.  It  forms  no  part  of  his  properly  or  estate  within  the  uieiining 
of  the  le'jislalive  ennrtuienis  constituting  our  insolvent  laws." 

iNothiug  can  be  more  (•xplirit  or  decisive!  ai,Minst  the  title  of  the  in- 
solvent trustee,  or  of  those  setting  iq>  a  claim  imder  him,  to  a  share  in 
this  I'aliimore  Conq)any.  The  court  say,  "  it  h.is  no  le<:;d  or  moral 
obliL^■^lion  to  suppr)rt  it,  and  timl,  therefore,  under  the  insolvent  laws 
of  Alar}  land,  such  a  claim  does  not  pass  to  or  vest  in  the  trustee  of  an 
insolvent  petitioner.  It  forms  do  p.irt  of  his  property  «>r  estate,  wiihin 
the  meaniii"-  of  the  le'Hslaiive  en.iciments  con^iituiiiii;  our  insolvent 
system."  And  this  opinion  is  reallirmed,  ijisisimis  verbis,  in  giving  the 
7 


48 

judgment  against  the  trustee  of  Williams,  then  before  the  court,  and 
with  which  we  are  now  dealing;  and  yet  it  is  gravely  insisted  that  no 
such  decision  was  made  in  this  case  as  was  made  in  the  case  of  Good- 
win; but,  on  (he  contrary,  the  court  decided  (hat  the  in(erest  in  the 
share  of  Williams  did  pass  under  the  insolvent  laws  to  (he  trustee; 
that  he  became  thereby  invested  with  the  title,  and  was  competen(  to 
transfer  it  to  Robert  Oliver,  (he  testator  of  the  defendants. 

The  supposed  contradiction  and  inconsistency  of  the  determination 
of  the  court  is  founded  upon  the  second  paragraph  in  the  opinion  de- 
livered. It  is  as  follows.  2d.  "  Because,  under  (he  proceedings  based 
on  or  originating  from  the  insolvent  petitions  of  John  Gooding  and 
James  Williams,  and  the  act  of  assembly  applicable  thereto,  Robert 
Oliver  acquired  a  valid  title  to  all  the  interest  of  said  James  Williams 
and  John  Gooding  in  the  fund  in  controversy,  for  the  reasons  assigned 
by  Judge  Martin  as  the  basis  of  his  opinion  in  those  cases." 

Judge  Martin  had  dissen(ed  from  (he  opinion  of  the  majority  of  (he 
court,  in  the  case  of  Lyde  Goodwin,  being  of  opinion  (hat  the  interest 
in  his  share  passed  under  the  insolvent  laws  to  (he  (rusiee;  and  had 
maintained  the  same  opinion  in  respect  to  the  share  of  Williams,  in 
the  case  (hen  before  the  court.  And  it  is  supposed  (hat  (his  opinion 
was  adop(ed  by  the  other  members,  in  the  determination  of  the  case. 

We  do  not  agree  that  (his  is  a  proper  apprehension  of  the  judgment 
given  by  (he  two  members  of  the  court;  but,  on  the  contrary,  are  satis- 
fied (hat  the  opinion  delivered  may  well  warrant  a  more  natural  and 
consistent  interpretation. 

The  true  meaning  will  be  apparent,  we  think,  from  (he  following 
explanation.  Robert  Oliver,  as  we  have  seen,  had  purchased  the 
share  of  Williams  of  the  insolvent  trustee,  in  1825,  and,  consequently, 
if  the  interest  in  his  share  passed  under  the  insolvent  laws  to  the  trus- 
tee, it  had  become  vested  in  Oliver,  and  of  course,  on  his  death,  in 
the  executors. 

The  question  before  the  court  was  between  the  insolvent  trustee  and 
the  executors.  The  court,  after  reaffirming  their  opinion  in  (he  case 
of  Lyde  Goodwin,  namely,  that  no  in(erest  in  the  share  passed  to  the 
trustee  under  the  insolvent  laws,  and  therefore  (hat  he  was  disabled 
from  making  out  a  title  to  it,  go  on  in  substance  to  say,  that  if  in  error 
as  to  (his,  and  the  opinion  of  .ludge  Martin  should  be  adop(ed,  namely, 
that  the  interest  did  pass  to  the  trustee,  ii  could  make  no  difference  in 
the  result,  inasmuch  as  the  executors  of  Oliver  would  then  be  entitled 
to  the  proceeds,  under  his  purchase  of  (he  share  from  the  trustee  him- 
self, in  1825.  Therefore,  viewing  the  case  in  either  aspect,  qua  cun 
que  via  data,  (he  insolvent  trustee  had  failed  in  establishing  any  in- 
terest in  the  fund. 

It  appears  to  us  that  this  is  obviously  the  meaning  intended  to  be 
expressed,  though  we  admit  the  terms  used  in  the  expression  of  it  fur- 
nish some  plausibility  for  the  criticisms  to  which  it  has  been  subjected. 
The  two  opinions,  (he  one  in  the  case  of  Goodwin,  and  the  other  in 
the  case  of  Williams,  were  given  at  the  same  term,  and  upon  the  same 
question;  and,  if  (he  interpretation  of  (he  defendan(s  is  right,  are  dia- 
metrically opposite  to  each  other;  and  not  only  so,  as  (he  first  opinion 


49 

is  incorporated  in  the  second,  tlie  judgment  rendered  in  the  case  of 
Williams  is  founded  upon  two  opposite  constructions  of  the  same  statute, 
in  one  and  the  same  opinion. 

We  prefer  the  explanation  we  have  given  to  this  extraordinary  and 
absurd  conclusion,  as  it  respects  the  proceedings  of  a  respectable  court, 
and  one  possessing  the  highest  jurisdiction  in  the  State. 

The  change  of  opinion  upon  a  question  of  law,  or  in  the  construc- 
tion of  a  statute,  is  no  disparagement  to  a  judge,  or  a  court,  however 
eminent  or  experienced.  The  change  is  oftentimes  a  matter  of  com- 
mendation, rather  than  of  reproach.  But  the  case  here  presented,  and 
upon  which  we  are  asked  to  turn  the  decision  of  the  question,  is,  that 
two  opposite  constructions  of  a  statute  have  been  given  by  the  court  in 
the  same  cause,  leading  necessarily  to  opposite  results,  and  both  relied 
on  as  grounds  for  the  judgment  rendered.  We  have  already  assigned 
our  reasons  for  disbelief  in  any  such  conclusion,  and  shall  not  again 
refer  to  them. 

It  has  been  suggested  that  the  statute  of  Maryland,  of  1S41,  confirm- 
ing certain  defective  proceedings  in  insolvent  cases,  operated  to  confirm 
the  sale  of  the  trustee  to  Oliver  in  1S25,  and  that  the  opinion  of  the 
court  of  appeals  in  the  case  of  Williams  is  founded  upon  this  statute. 
Winchester,  the  permanent  trustee  at  the  time  of  the  sale,  had  not 
given  a  bond  with  surety,  for  the  faithful  execution  of  his  (hity,  as 
required  by  the  law  ;  and,  under  the  decisions  of  the  courts  of  Mary- 
lantl,  this  omission  disabled  him  from  dealing  with  the  estate  of  the 
insolvent. 

The  act  of  1841  was  passed  to  remedy  defects  of  this  description.  It 
provided  that  all  sales  and  transfers  of  properly  and  claims,  (heretofore 
made  by  any  permanent  trustee,  (fcc,  under  the  insolvent  laws  of  the 
State,  shall  be  valid  and  effectual,  notwithstanding  such  trustee  shall 
not  have  given  a  bond  with  security,  (fcc  ;  and  the  3d  section  provides 
that  the  act  shall  not  be  so  construed  as  to  cure  any  oilier  defect  in  (he 
proceedings,  than  the  failure  to  give  a  bond,  with  secmity,  or  the  want 
of  any  ratification  by  the  court  of  any  sale  made  by  such  trustee. 

It  is  quite  apparent  from  the  provisions  of  the  act  that  it  was  not 
designed  to  confirm  all  sales  previously  made  by  (he  Irusicc-  under  ihe 
insolvent  laws,  and  render  them  valid  and  etlectual,  but  sinq)ly  to 
confirm,  so  far  fus  respected  any  defect  arising  out  of  (he  omission  of 
(be  lrus(ee  to  give  the  proper  secmity,  and  also  as  respecifd  any  omis 
sion  on  (he  part  of  (he  court  to  confirm  (be  sale.  'llu'se  (wo  dtTecis 
in  any  |)revioiis  proceedings  were  cured  by  (he  s(a(ul<',  Imi(  in  all  (iiImt 
respects  the  proceedings  were  valid  or  odu^rwise  independendy  <>(  i(. 
It  is  im{)0ssible  to  mainiain  that  the  slalu(<;  looked  (o  any  such  infijr- 
m.'di(y  in  (he  (ille  of  (he  (rustee,  as  (hat  held  by  lb"-  court  of  jq)pcals 
in  (he  case  of  lijde  CJoodwin,  as  well  as  in  (he  jirc.-ent  one.  And, 
besides,  it  is  inconceivable  why  the  court  slioidd  have  reairirmed  their 
opinion  in  (he  case  of  Goodwin,  us  a  ground  for  denying  (he  tide  (o 
the  (rustee,  if  (hey  hati  in(cudcd  to  hold  (hat  it  pass<'d  by  forcr  of  (be 
act  of  1S41.  We  have  no  belief  that  such  was  the  opinion  in(ended 
to  be  expressed. 


50 

The  decree  of  the  court  affirming  the  judgment  of  the  court  below 
has  been  referred  to  as  favoring  the  view  of  the  decision  contended  for 
by  the  appellees.  This  decree  adjudges  and  decrees  that  the  judg- 
ment below  awarding  the  share  of  Williams  to  the  executors  of  Oliver 
be  affirmed,  and  that  Glenn  and  Ferine,  the  general  trustees  of  the 
fund,  pay  the  proceeds  of  the  share  to  the  said  executors. 

It  will  be  remembered,  that  the  only  question  before  the  court  re- 
specting this  share  was  between  the  executors  on  the  one  side,  and  the 
insolvent  trustee  of  Williams  on  the  other;  aiid  as  the  executors  were 
the  apparent  owners  of  the  fimd,  unless  a  title  could  be  maintained  by 
the  trustee,  so  far  as  respected  the  parties  before  the  court,  the  former 
exhibited  the  better  title;  at  least  the  better  title  to  take  the  possession 
and  charge  of  the  fund  in  the  distribution  among  the  claimants.  The 
form  of  the  decree,  therefore,  was  very  much  a  matter  of  course  in  the 
aspect  of  the  case  as  then  presented. 

This  view  will  be  more  fully  appreciated  when  we  refer  to  another 
branch  of  this  case,  presently  to  be  considered.  We  will  simply  add, 
in  our  conclusion  upon  this  part  of  the  case,  that  the  opinion  now  ex- 
pressed was  the  one  entertained  by  us  when  the  case  involving  this 
share  of  Williams  was  formerly  before  the  court,  and  which  will  be 
found  in  12  How.,  pp.  Ill ,  123. 

At  p.  123  we  observed  the  counsel  for  the  plaintiff  in  error  sought  to 
distinguish  this  case  from  the  previous  one,  (the  case  of  Lyde  Good- 
win,) and  to  maintain  the  jurisdiction  of  the  court,  upon  the  ground 
that  the  act  of  the  legislature  of  Maryland  of  1841,  confirming  the 
authority  of  Winchester,  the  permanent  trustee,  was  in  contravention 
of  a  provision  of  the  Constitution  of  the  United  States,  as  "  a  law  im- 
pairing the  obligation  of  contracts." 

But  we  observed  in  answer,  "  admitting  this  be  so,  (which  we  do 
not,)  still  the  admission  would  not  affect  the  result,  for  the  decision 
(of  the  court  of  appeals)  upon  a  previous  branch  of  the  case  denied  to 
the  plaintiff  any  right  to  or  interest  in  the  fund  in  question,  as  claimed 
under  the  insolvent  proceedings  as  permanent  trustee,  and  hence  he 
was  deemed  disabled  from  maintaining  any  action  founded  upon  that 
claim. 

It  was  of  no  importance,  therefore,  as  it  respected  the  plaintiff,  in 
the  distribution  of  the  fund,  whetlier  it  was  rightfully  or  wrongfully 
awarded  to  Oliver's  executors.  He  had  no  longer  any  interest  in  the 
question." 

Our  conclusion,  therefore,  upon  this  part  of  the  case  is,  that  accord- 
ing to  the  law  of  Maryland,  as  expounded  by  the  highest  court  of  the 
State,  no  title  to  or  interest  in  the  share  of  Williams  in  tlie  contract  of 
the  Baltimore  Company  under  General  Mina  passed  under  the  insol- 
vent laws  of  that  State  to  the  insolvent  trustee;  and,  consequently,  no 
interest  in  the  same  became  vested  in  the  executors  of  Robert  Oliver 
by  force  of  the  assignment  from  the  trustee  to  him  in  182-5. 

2.  The  next  question  is  as  to  the  conclusiveness  of  the  decree  of 
the  Baltimore  county  court,  making  a  distribution  of  the  fund  among 
the  several  claimants,  and  which  was  atfirmed  by  the  court  of  appeals, 
upon  the  rights  of  the  administrator  of  Williams  to  the  proceeds  of  Ids 


I 


51 

share  in  the  fund.     The  decree  in  the  Ballimore  coiinly  court  was 
rendered  in  December,  1846,  and  atfirnicd  June  lerni,  1849. 

Wilhams  died  in  1836,  and  no  letters  of  administration  were  taken 
out  upon  the  estate  till  1852.  It  appears,  therefore,  that  WiUiams  had 
been  dead  ten  years  when  the  first  decree  was  made,  and  thirteen  at 
the  date  of  the  second;  and  no  representative  was  in  existence  (o  whom 
notice  of  the  proceedings  could  affect  in  any  way  ilie  interest  of  the 
estate  in  the  fund. 

Now,  the  principle  is  well  settled,  in  respect  to  these  proceedings  in 
chancery  for  the  distribution  of  a  common  fund  among  the  several 
parties  interested,  either  on  the  application  of  the  trustee  of  the  fund, 
the  executor  or  administrator,  legatee,  or  next  of  kin,  or  on  the  appli- 
cation of  any  party  in  interest,  that  an  absent  party,  who  had  no  notice 
of  the  proceedings,  and  not  guilty  of  wilful  laches  or  unreasonable 
neglect,  will  not  be  concluded  by  tlie  decree  of  distribution  from  the 
assertion  of  his  right  by  bill  or  petition  against  the  trustee,  executor  or 
administrator;  or,  in  case  they  have  distributed  the  fund  in  pursuance 
of  an  order  of  the  court,  against  the  distributees.  (1  Miln  and  Keen, 
200,  David  vs.  Froud;  1  Russ.  and  M.  338,  Greig  vs.  Somervillo;  3 
Russ.  130,  Gillespie  V5  Alexander;  1  Keen,  391,  Sawyer  ?'5.  I3uch- 
more;  1  Ball,  and  13.  436,  Shine  vs.  Gough;  Story's  Eq.  PI.  ^  106; 
11  VVh.  304,  Finley  vs.  Bank  United  States;  14  How.  52,  67,  Wis- 
wall  vs.  Sampson. 

The  general  principle  governing  courts  of  equity,  in  proceedings  of 
this  description,  is  more  clearly  stated  by  Sir  John  Leach,  luasier  of 
the  rolls  in  David  vs.  Froud,  above  referred  to,  than  in  any  other  case 
that  has  come  under  our  notice. 

That  was  a  case  where  one  of  the  next  of  kin,  who  had  no  notice  of 
the  administration  suit,  filed  a  bill  against  the  administratrix  and  dis- 
tributees to  obtain  her  share  of  the  estate.  I'he  bill  was  filed  some 
two  years  after  the  decree  for  distribution  had  been  maile  and  carried 
into  eflfect. 

The  master  of  the  rolls  observed,  that  '<  the  personal  j)ropcrty  of  an 
intestate  is  first  to  be  applied  in  payment  of  his  debts,  and  then  dis- 
tributed amongst  his  next  of  kin.  The  person  who  takes  out  admin- 
istration to  his  estate,  in  most  cases,  cannot  know  who  are  liis  creditors, 
and  may  not  know  who  are  his  next  of  kin;  and  the;  adminisiiaiion  of 
his  estate  may  be  exposed  to  great  delay  and  embarrassment.  A  court 
of  equity  exercises  a  most  wholesome  jurisdiclidu  for  (be  prevention  of 
this  delay  and  emi)arrassment,  and  for  (he  assistance  and  protection  of 
the  administralftr.  U[)on  the  apjtiication  of  any  person  rlaimiiiLT  t')  be 
irit«;rest<;d,  the  court  refi;rs  it  to  the  master,  to  in<|uire  who  are  creditors 
and  who  are  next  of  kin,  and  for  that  purpose  to  cause  advertisrtnenis 
to  be  j)ui)lished  in  the(|uarters  where  creditors  and  next  of  kin  are  most 
likely  to  bf;  found,  calling  upon  su<h  creditors  arjd  next  of  kin  to  conn; 
in  and  make,  their  claims  before  tin;  masl(;r  within  a  reasouable  time 
stated;  and  when  that  time  is  exj^red,  it  is  considered  (hat  the  best  pos- 
sible means  having  been  taken  (o  ascertain  the  |)arties  really  entitled, 
the  administrator  may  reasonably  iMorcr-d  to  distribute  the  estate  anioiiir 
tb(»se  who  have  before  (he  master  eslabiislied  an  apparent  liilc.      Sneji 


52 

proceedings  having  been  taken,  the  court,  will  protect  the  administrator 
against  any  future  claim. 

But  it  is  obvious,  he  remarks,  that  the  notice  given  by  advertise- 
ments may,  and  must  in  many  cases,  not  reach  the  parlies  really  en- 
titled. They  may  be  abroad,  and  in  a  different  part  of  the  kingdom 
from  that  where  the  advertisements  are  published,  or  from  a  multitude 
of  circumstances  they  may  not  see  or  hear  of  the  advertisements,  and 
it  would  be  the  height  of  injustice  that  the  proceedings  of  the  court, 
wisely  adopted  with  a  view  to  general  convenience,  should  have  the 
absolute  effect  of  conclusively  transferring  the  property  of  the  true 
owners  to  one  who  has  no  right  to  it. 

The  master  of  the  rolls  further  observed,  that  if  a  creditor  does  not 
happen  to  discover  the  proceedings  in  the  court,  until  after  the  distribu- 
tion has  been  actually  made  by  the  order  of  the  court  amongst  the  par- 
ties having  by  the  master's  report  an  apparent  title,  although  the  court 
will  protect  the  administrator,  who  has  acted  under  the  orders  of  the 
court,  yet,  upon  a  bill  filed  by  this  creditor  against  the  parties  to  whom 
the  property  has  been  distributed,  the  comt  will,  upon  proof  of  no  wil- 
ful default  on  the  part  of  such  creditor,  and  no  want  of  reasonable  dili- 
gence on  his  part,  compel  the  parties  defendants  to  restore  to  the  credi- 
tor that  which  of  right  belongs  to  him.  The  master  of  the  rolls  then 
applied  tliis  principle  to  the  right  of  the  next  of  kin,  the  complainant 
in  the  bill,  and  observed,  that  it  had  been  argued  that  the  case  is 
extremely  hard  upon  the  party  who  is  to  refund,  for  that  he  has  a  full 
right  to  consider  the  money  as  his  own,  and  may  have  spent  it;  and 
that  it  would  be  against  the  policy  of  the  law  to  recall  the  money,  which 
the  parly  had  obtained  by  the  effect  of  a  judgment  upon  a  litigated 
title,  Bui,  he  observed,  there  is  here  no  judgment  upon  a  litigated 
title;  the  party  who  now  claims  by  a  paramount  title  was  absent  from 
the  court,  and  all  that  is  adjudged  is,  that,  upon  an  inquiry  in  its  nature 
imperfect,  parlies  are  found  to  have  a  prima  facie  claim,  subject  to  be 
defeated  upon  better  information.  The  apparent  title,  under  the  mas- 
ter's report,  is  in  its  nature  defeasible,  A  party,  claiming  under  such 
circumstances,  has  no  great  reason  to  complain  that  he  is  called  upon 
to  replace  what  he  has  received  against  his  right. 

In  the  case  of  Gillespie  vs.  Alexander,  also  above  referred  to,  Lord 
Eldon  observed,  that,  all  hough  the  language  of  the  decree,  where  an 
account  of  debt  is  directed,  is,  that  those  who  do  not  come  in  shall  be 
excluded  frou)  the  benefit  of  it;  yet  the  course  is  to  permit  a  creditor, 
he  paying  costs,  to  prove  his  debt,  as  long  as  there  happens  to  be  a 
residuary  fund  in  court,  or  in  the  hands  of  the  executor,  and  to  pay  him 
out  of  the  residue.  If  the  creditor  does  not  come  till  after  the  executor 
has  paid  away  the  residue,  he  is  not  without  remedy,  though  he  is 
barred  the  benefit  of  that  decree.  If  he  has  a  mind  to  sue  the  legatees, 
and  bring  back  the  fund,  he  may  do  so,  but  he  cannot  affect  the  lega- 
tees, except  by  suit,  and  he  cannot  affect  the  executor  at  all. 

Tliese  principles  are  decisive  of  this  branch  of  the  case,  as  they 
establish,  beyond  all  controversy,  the  right  of  the  administrator  to  assert 
the  title  of  Williams,  the  intestate,  to  the  proceeds  of  the  share  in 
(piestion,  notwithstanding  the   decree  of  distribution  by  the  Baltimore 


53 

county  court,  Tliere  has  been  no  laches  on  his  part,  orjon  the  part  of 
those  wliom  he  represents. 

The  cases  above  referred  to  relate  to  the  rights  of  creditors  and  next 
of  kin,  but  the  principle  is  equally  applicable  to  all  parties  interested 
in  a  common  fund  brought  into  a  court  of  equity  for  distribution 
amongst  the  several  claimants. 

It  is  worthy  of  observation  in  this  connection,  that  the  decree,  how- 
ever conclusive  in  its  terms  in  the  distribution  of  the  fund  amongst  the 
apparent  owners  then  before  the  court,  possesses  no  binding  effect  upon 
the  rights  of  the  absent  party  whose  interests  have  not  been  repre- 
sented or  the  subject  of  litigation.  The  opinion  of  the  court  given, 
and  decree  in  pursuance  thereof,  applies  only  to  interests  of  those 
amongst  whom  the  fund  is  distributed. 

These  observations  furnish  an  answer  to  the  argument  on  behalf  of 
the  appellees,  drawn  from  a  reference  to  the  terms  of  the  decree  of  the 
court  of  appeals  of  Maryland,  in  this  case,  by  which  the  fund  is  ad- 
judged to  the  executors  of  Oliver.  As  between  all  the  parties  then 
before  the  court,  this  adjudication  was  doubtless  proper  and  conclusive 
upon  their  rights. 

It  is  agreed  in  the  case,  that  but  five-eighths  of  the  fund  in  contro- 
versy is  in  the  hands  of  the  executors,  the  residue  having  been  paid 
over  in  the  administration  of  the  assets  of  the  estate. 

If  this  portion  had  been  paid  over  by  the  executors  in  pursuance 
of  an  order  of  the  court  in  an  administration  suit,  the  defendants  woidd 
be  protected  to  that  extent,  and  the  complainant  compelled  to  proceed 
against  the  distributees.     But  no  such  fact  appears  in  the  case. 

Without  saying,  at  this  time,  that  an  executor,  in  all  cases,  may  be 
compelled  to  account  to  a  party  making  title  to  a  portion  of  the  estate, 
after  distribution  among  the  legatees  and  next  of  kin,  unless  first  pro- 
curing an  order  of  the  court  having  charge  of  the  administration,  we 
perceive  no  reason,  under  tlie  circumstances  of  this  case,  for  exoner- 
ating tliem,  or  turning  him  round  to  a  bill  against  the  distributees. 

Upon  the  whole,  after  the  fullest  consideration  we  have  been  able  to 
give  to  this  case,  we  think  the  decree  of  the  court  below  was  erroneous, 
and  should  be  reversed. 


^  Mr.  Chief  Jualic(i  Taney's  opinion  will  br  found  on  j)ag<'  r»,  and  } 
'^  Mr.  Justice  Danikl\s  opinion  on  p;i^e  .'5'J.  \ 


54 

SUPREME  COURT  OF  THE  UNITED  STATES. 

December   Term,    1854. 


court 


Jolin    S.    Williams,    Administrator    of" 

James  Williams,  deceased,  appellant, 

vs.  y 

Robert  M.  Gibbes  and  Charles  Oliver,   | 

Executors  of  Robert  Oliver,  deceased.  J    .  ,   ^         ... 

'  -^  Appeals  from  the  circuit 

And  of  the  United  States  for  the 

John  Gooding,  jr.,  adm'r  de  bonis  non  -|       ^''^'^"^^  «^  Maryland. 

of  Jolin  Gooding,  deceased,  appellant,   | 
vs.  J> 

Robert  M.  Gibbes  and  Charles  Oliver,   j 

Executors  of  Robert  Oliver,  deceased.  J 

Mr.  Justice  DANIEL  dissenting. 

When,  at  a  former  term,  these  cases  were  brought  before  this  court, 
in  the  name  of  Nathaniel  Williams,  trustee  for  the  creditors  of  James 
Williams,  an  insolvent  debtor,  and  of  the  same  Nathaniel  Williams,  as 
trustee  for  the  creditors  of  John  Gooding,  an  insolvent  debtor,  the 
court,  after  argument  and  upon  full  consideration,  dismissed  them  for 
the  want  of  jurisdiction.  The  decision  of  the  court,  then  pronounced, 
commanded  my  entire  concurrence.  I  still  concur  in  that  decision, 
and  hold  the  reasons  on  which  it  was  founded  as  wholly  impregnable. 
Those  reasons  were  specifically  these:  That  the  questions  involved  in 
the  cases  were  purel}'^  questions  arising  upon  the  construction  of  the 
insolvent  laws  of  Maryland;  questions  properly  determinable,  and  which 
had  been  determined  by  the  highest  tribunal  of  that  State;  and  such, 
therefore,  as  vested  no  jurisdiction  in  this  court. 

Such,  then,  being  directly  and  explicitly  the  decision  of  this  court, 
as  will  be  seen  in  the  report  of  its  decision  in  the  12th  of  Howard,  pp. 
Ill  and  125,  it  becomes  a  matter  for  curious  speculation  to  inquire  by 
what  view  of  the  facts  and  the  law  of  these  cases,  by  what  process  of 
reasoning  upon  the  same  facts  and  the  same  law,  this  court  have  now 
arrived  at  a  conclusion  diametrically  opposed  to  that  which  had  been 
formerly  reached  by  them.  The  parties  in  interest  are  essentially  the 
same,  varied  only  in  name;  it  is  the  same  insolvent  law  of  Maryland 
which  it  is  now  as  it  formerly  was,  undertaken  to  interpret;  and  it  is 
the  identical  exposition  of  the  identical  court,  formerly  examined  and 
sanctioned  here,  which  this  tribunal  now  assumes  the  right  to  reject 
and  condemn. 

Indeed,  the  field  for  discussion  and  criticism  is  now  much  more 
narrow  than  was  that  which  existed  when  these  cases  were  formerly 
before  this  court.     At  that  time  there  were  strenuously  urged  grounds 


55 

for  contestation;  founded  upon  an  alleged  construction  of  the  Mexican 
treaty,  and  of  the  acts  of  the  commissioners  under  that  treat3^  At 
present,  the  claims  of  the  appellants,  and  the  impeachment  by  them  of 
the  decision  of  the  State  court,  and  of  that  of  the  circuit  court  of  the 
United  States,  have  been  rested  chiefly,  if  not  exclusively,  upon  the 
fact,  that  the  personal  representatives  of  the  insolvent  assignors  were 
not  made  parties  to  the  suits  brought  for  the  distribution  of  the  effects 
of  the  insolvents. 

It  cannot  be  correctl}^  insisted  on  as  a  universal  or  necessary  rule, 
(hat  in  suits  by  assignees  the  assignors  from  whom  they  derive  title 
must  be  made  parties.  Cases  may  occur  in  which  there  may  be  a 
propriety  of  joining  the  assignors  in  such  suits,  but,  without  some  ap- 
parent cause  for  such  a  proceeding,  the  rule  and  the  practice  are  other- 
wise. Indeed,  the  calling  into  a  controversy  or  litigation  a  person 
who  can  have  no  interest  in  such  litigation,  would  be  discountenanced 
by  the  courts,  who  would  dismiss  him  from  before  them  at  the  costs  of 
the  person  who  should  have  attempted  such  an  irregularity.  And  it 
would  seem  that  if  there  could  be  a  case  in  which  such  an  attempt 
would  be  irregular,  it  would  be  that  in  which  tlie  person  so  made  a 
party  had  not,  and  could  not  have,  any  interest  in  the  controversy;  in 
other  words,  should  be  nn  insolvent,  who  had  transferred  upon  record 
every  possible  interest  he  possessed  in  the  matter  in  controversy.  But 
suppose  it  be  admitted  as  the  general  rule,  that  an  assignee  should,  in 
the  prosecution  of  an  assigned  interest,  call  in  his  assignor  as  a  voucher, 
or  for  any  other  purpose,  how  will  these  cases  be  affected  by  such  an 
admission? 

The  absence  of  the  personal  representatives  of  the  insolvent  assign- 
ors is  the  only  circumstance  imparting  a  shade  or  semblance  of  differ- 
ence between  the  attitude  of  these  cases  as  formerly  brought  before  us, 
and  that  in  which  they  are  now  presented.  Of  what  importance, 
either  now  or  formerl}',  could  be  the  presence  or  absence  of  the  per- 
sonal representatives  of  these  insolvents  it  might  puzzle  CEdipus  him- 
self to  (iivino.  The  rights  or  interests  of  the  representative  can  never 
be  broader  tlian  rue  those  of  the  person  represciiled;  and  as  the  p(,'r- 
sfjtis  represented  in  these  cases  are  admitted  on  all  sides,  and  arc;  shown 
upon  record,  to  have  nothing,  by  reason  of  the  transfer  to  their  trusli^es 
of  all  that  they  had  ever  possessed,  or  to  which  they  had  any  claim — 
and  thai,  loo,  by  a  mode  of  transfer  which  declared  the  ina(le{|Mac\'  of 
their  all  Cor  the  liiiuidation  of  their  debts — it  followed  that  those  who 
came  forward  under  these  insolvents  jure  rc/iresoUalio/n's  merely, 
C(juld  themselves  be  entitled  to  nothing  by  rcprcscjiialioii  from  (heir 
princi[tals,  nor  claim  anything  in  opposition  to  the  universal  and  ai)su- 
liite  assignments  to  the  trustees  of  lliosi;  dehtois. 

Had  these  personal  representatives  of  the  insolvents  l»een  made  par- 
ties to  the  suits  for  distribution,  it  is  probable  that  they  wr)idd  have  been 
regarded  by  the  court  as  mere,  men  f»f  straw,  used  for  the,  purpose  of 
depriving  the  purchasers  for  valuabh;  consiileration  from  the  trustees 
or  assignees  of  the  insolvent's  interests,  deemed  at  the  time  of  the  sale 
l)y  the  trustees  [)recarioiis  and  coutiiigeut,  Imt  wliiiji  [\\<-  jnogressof 
events  had  subse(|Uentlv  leiiden-d  avail.ilile. 


5() 

But  whatever  may  be  admitted  as  the  general  rule  apph'cable  to  suits 
by  an  assignee;  however  that  rule  may  be  supposed  to  require  that  in 
such  suits  the  assignor  or  his  representative  should  be  a  party,  still  we 
are  brought  back  to  the  true  character  of  these  cases,  and  of  the  rule 
of  law  peculiarly  applicable  to  them,  viz:  that  they  are  controversies 
depending  upon  the  construction  of  the  statutes  of  Maryland,  which 
regulate  the  administration  of  the  effects  of  insolvent  debtors.  That, 
in  the  construction  of  those  statutes  it  has  been  by  the  supreme  court 
of  the  State  decided,  that  in  suits  by  the  purchasers  or  assignees  from 
the  statutory  trustees  of  insolvent  debtors,  the  personal  representatives 
of  those  insolvent  debtors  are  not  necessarily  to  be  made  parties,  but 
that  such  suits  may  be  prosecuted  and  decided  without  participation  or 
interference  on  the  part  of  such  representatives;  that  in  conformity 
with  this  construction  of  the  statute  of  Maryland  by  the  supreme  court 
of  the  State,  the  circuit  court  of  the  United  States  for  the  district  of 
Maryland,  and  this  court,  in  the  cases  herein  mentioned,  have  concur- 
rently ruled  in  direct  opposition  to  the  pretensions  of  the  appellants 
now  advanced. 

Regarding  the  decision  just  pronounced  as  in  conflict  with  all  that 
has  been  heretofore  ruled  upon  the  subjects  of  this  controversy,  and  as 
transcending  the  just  authority  of  this  court  to  reject  the  construction 
of  the  statute  of  Maryland  proclaimed  by  the  supreme  court  of  that 
State,  I  am  constrained  to  declare  my  dissent  from  the  decision  of  this 
court,  and  my  opinion  that  the  decrees  of  the  circuit  court  in  these 
cases  should  be  affirmed. 

Order. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record  from 
the  Circuit  Court  of  the  United  States,  for  the  district  of  Maryland, 
and  was  argued  by  counsel.  On  consideration  whereof,  it  is  now  here 
ordered,  adjudged,  and  decreed  by  this  Court,  that  the  decree  of  the 
said  Circuit  Court  in  this  cause  be,  and  the  same  is  hereby  reversed 
with  costs,  and  that  this  cause  be,  and  the  same  is  hereby  remanded  to 
the  said  Circuit  Court,  for  further  proceedings  to  be  had  therein,  in 
conformity  to  the  opinion  of  this  Court. 


57 

SUPREME  COURT  OF  THE  UNITED  STATES. 

December   Term,    185  4. 


John  Gooding,  jr.,  Administrator  de  bonis  non 
of  John  Gooding,  deceased,  appellant, 

vs.  )> 

Robert  M.  Gibbesand  Charles  Oliver,  Execu- 
tors of  Robert  Oliver,  deceased. 


Appeal  from  the  cir- 
cuit court  of  the  Uni- 
ted States  for  the  dis- 
trict of  Maryland. 


Mr.  Justice  NELSON  delivered  the  opinion  of  the  Court. 

This  is  an  appeal  from  a  decree  of  the  circuit  court  of  the  United 
States  for  the  district  of  Maryland. 

The  case  involves  the  same  questions,  and  is  in  all  respects  the  same 
as  the  case  of  the  administrator  of  Williams  against  the  executors  of 
Oliver,  just  decided.* 

The  decree  of  the  court  below  is  therefore  reversed,  and  the  case 
remanded  to  the  court  below. 

Order. 

This  cause  came  on  to  be  heard  on  the  transcript  of  th^  record  from 
the  Circuit  Court  of  the  United  States  for  the  District  of  Maryland  and 
was  argued  by  counsel.  On  consideration  whereof,  it  is  now  here 
ordered,  adjudged  and  decreed  by  this  Court  that  the  decree  of  the 
said  Circuit  Court  in  this  cause  be  and  the  same  is  hereby  reversed 
with  costs,  and  that  this  cause  be  and  the  same  is  hereby  remanded  (o 
the  said  Circuit  Court  for  further  proceedings  to  be  had  therein,  in 
conformity  to  the  opinion  of  this  Court. 


•  For  the  Opinions  in  the  cnsc  of  tlie  Administrator  of  Williams  agninst  llic  Executors 
of  Oliver,  see  pajjus  4G,  5,  and  54. 


» 


^OFCAllFOff^ 


:•#      ^^Aavaani^ 


i   3 


40FCAIIF0%      ^ 

C5       S 


^^Aiivaaii# 


%      4^lOSANCElfx^         -^^^lUBRARYQr,      -^lUBRARYQc 


>a3AINn-3Wv 


ll-\' 


1^ 


^OfCAUFO^/l^ 


??  ^ 


'^^Aavaaii-#' 


^OJIIVJJO^ 


^OFCAllFO% 


«AMEUNIVERy/A      ^ 


5WEl)NIVER% 


<ril33NVS01=<^ 


\ 


^HIBRARYQr, 


ir%>^      %;. 


i'g 


''(^Aav 


^^ 


«A\^El)NIVER%.      ^lOSANCEl£n> 


^1^MBNiV£R%      ^lOSANCElfj^ 


00 


^1  I 


■"^iTiiaDNvsoi^     ^a^AiNn-aftV 


:^ 


-j^lUBRARYOc 


^. , 

^^Aavaani^ 


lOSANCElfXA 


iiciri «  nw  ,-v 


.t  \\ 


'^mimwi^i^' 


8RARY<?A, 


es       tj 


4il 

-^OFCAUfORfe.       AOfCAUfOBto 


IRTI  I  6 


•'(^AavaaiHv^" 


"(^Aavaan-i^ 


.\WEUNIVERS/^       ^ 

^71         C5 


S   3 


^5jaEumvER%    ^ 

s  ^- 


'UBRARYOc. 


.^WEUNIVERS/A       A>clOSANCtl%        -cJ^lUBRARYQ^,      -oj 


r. 


niiiiii'iiMlilliigiiillillllllllllll  in 
L  006  676  589  2 


.,r  I  irr*  I.  n>  ■  -, 


< 

m 
SO 

5? 


UC  SOUTHERN  RFGIOPJAL  LIBRARY  FACILITY 


AA    000  518  956 


CO 


1^ 


-'6 


I      ">■ 


